Earlier this summer, Senators Tim Scott (R-SC) and Cory Booker (D-NJ) and Representative Karen Bass (D-CA) appeared on the cusp of forging a bipartisan and bicameral agreement on reforming policing in America. But there are still a few outstanding issues, and one in particular—qualified immunity—appears to be the biggest hurdle left to clear.
Qualified immunity has never been codified in law; rather, the original qualified immunity doctrine was established by the Supreme Court in 1967 as a way to protect law enforcement officers accused of misconduct from civil liability if they could prove they acted in “good faith and [with] probable cause.” This standard protected officers who made mistakes despite good intentions, but allowed for those who committed more egregious or intentional acts of misconduct to be held accountable.
However, this “good faith” standard is no longer in use. In 1982, the Supreme Court relaxed its standards for granting qualified immunity in such a way that it is now virtually impossible to find law enforcement officers individually liable for civil damages. In an effort to remove some subjectivity from qualified immunity decision making, the Supreme Court ruled in Harlow v. Fitzgerald that law enforcement officers would be entitled to qualified immunity as long as they did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Under this “clearly established law” standard, even if an officer’s actions are intentional or malicious, a victim cannot file suit unless there is an exact judicial precedent in that jurisdiction demonstrating the unlawfulness of the conduct in question. If a victim wishes to sue a law enforcement officer, the facts of the incident in question must be virtually identical to those in a previously decided case. In 2020, Institute for Justice attorney Joshua Windham argued, “Qualified immunity means that government officials can get away with violating your rights as long as they violate them in a way nobody thought of before.”
This isn’t a hypothetical—it’s happened before.
In 2014, after following a suspect into Amy Corbitt’s Douglas, Georgia yard, a police officer fired his gun at a non-threatening pet dog. He missed, hitting Corbitt’s 10-year-old son in the leg. Corbitt filed suit, but the Eleventh Circuit dismissed the case on the grounds that “Corbitt failed to present [the court] with any materially similar case… that would have given [the officer] fair warning that his particular conduct violated the Fourth Amendment.”
In 2020, the Fifth Circuit Court of Appeals granted qualified immunity to an officer who, without justification, attacked an inmate with pepper spray in his cell. In his dissent, Judge Gregg Costa expressed disapproval of the doctrine that led to the Court’s decision: “Despite recognizing that an unprovoked assault violates the Constitution, the majority grants the guard immunity because we have not decided a similar case involving pepper spray.” (A similar case cited by the plaintiffs involved an officer tasing an inmate for no reason.)
It is worth noting, however, that the idea behind qualified immunity makes sense. As the Supreme Court explained in 2011, “[T]he doctrine of qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” A law enforcement officer must make split-second decisions without inhibition, and in the absence of qualified immunity, the fear of liability could reasonably compromise an officer’s ability to perform this role effectively.
Some who support maintaining the current qualified immunity standard also point out that a repeal of the doctrine could adversely impact police recruitment and retention at a moment when police departments nationwide are dealing with officer shortages. According to a Police Executive Research Forum (PERF) survey, the retirement rate for law enforcement officers was 45% higher between 2020 and 2021 than in the previous year.
But, as many Democrats as well as jurists claim, unrestricted protections not only make it difficult to hold officers accountable for their actions after the fact, but can also incentivize them to err on the side of excessive force. In a 2015 dissent, Supreme Court Justice Sonia Sotomayor argued that qualified immunity gives rise to a “‘shoot first, think later’ approach to policing.”
In general, Republicans are supportive of maintaining qualified immunity while Democrats want to see it overhauled.
Senator Tim Scott (R-SC) has expressed his willingness to compromise on the issue, suggesting a reform that would involve liability for police departments rather than individual officers. Scott has been involved in bipartisan talks with Senator Cory Booker (D-NJ) and Rep. Karen Bass (D-CA), but these negotiations are at a standstill.
One option for compromise, which lawmakers have yet to discuss openly, would involve keeping qualified immunity but reverting back to the 1967 “good faith and reasonableness” standard. According to the nonprofit law firm Institute for Justice, “Under that standard, at least intentional and obvious constitutional violations would not be protected. This middle position would eliminate many of the problems created by the impossibly specific ‘clearly established’ requirement.”
Clearly, qualified immunity in its current form is not working as intended. Lawmakers must examine all available options for bipartisan reform before forfeiting their efforts.
The American public is clear on what it wants from its elected officials: in a recent poll conducted by George Washington University, 79% of Americans said they “prefer politicians who compromise and get things done rather than standing on principle and not acting.”
Specifically, in this moment, Americans are eager for Congress to find the common ground necessary to pass another COVID-19 relief bill. According to an August NPR/Ipsos poll, 65% of respondents were in favor of a new package that would include another round of stimulus checks, and 63% were in favor of renewing the extended unemployment benefits program.
On Tuesday, the House Problem Solvers Caucus—a bloc of 25 Democrats and 25 Republicans committed to finding bipartisan policy solutions—answered this call for compromise with a COVID-19 relief policy framework entitled “March for Common Ground.” The proposal bridged the divide on some of the thorniest issues that had been dividing the two parties including aid for small businesses, states and localities, COVID testing, and election security.
At $1.52 trillion, this relief package strikes a balance between the $3 trillion Democratic proposal passed in the House and the $650 billion “skinny” relief bill that Republicans had been debating. This breakthrough is an encouraging testament to the fact that bipartisanship is alive and well—even in an era of intense polarization.
However, following a conference call with House Speaker Nancy Pelosi (D-Calif.) just a few hours after the proposal’s release, eight House Democratic committee chairs released a joint statement dismissing the bill as one that “falls short of what is needed to save lives and boost the economy.” Understandably, this election-year politicking frustrated the Problem Solvers.
Rep. Kendra Horn (D-Okla.) called it “unacceptable that congressional leadership is not at the table when businesses are closing, Americans are out of work, and families need help.” Similarly, Rep. Abigail Spanberger (D-Va.) remarked, “my conviction is to actually do my goddamn job and come up with a solution for the American people.”
They’re right to be unhappy, and they are speaking for the vast majority of the country. The American public could not be clearer about what it wants from its leaders during this economic and public health crisis. Hopefully, House and Senate leadership will recognize this before it’s too late and get moving on a bipartisan relief bill that looks something like what the Problem Solvers proposed.
Following the release of “Policing in America: Closing the Data Gap,” policy analyst Julia Baumel had the chance to speak with Rachel Moran, a law professor at the University of St. Thomas whose research focuses on police accountability, police reform, and public access to police misconduct records, to learn more.
JB: One reason why we can’t come to a consensus on police reform is that we don’t have enough good data on how it is actually conducted across the country. Can you talk about why that is the case, and what the consequences are?
RM: Yeah. Well I’ll call it partly a matter of political will. I think until the past, I would say six years dating back to the death of Michael Brown, there has been from the at least from the majority of people in the United States a lack of interest in, or lack of concern about, issues relating to police misconduct, police accountability. Police unions, law enforcement unions are a powerful political force and so many of our political players have little interest in sort of irritating them or doing anything that would suggest they don’t agree with law enforcement. You’ve got a strong, consistent voice from many communities of color who have been raising concerns about police misconduct for decades. But there has not been a lot of attention to it until the past few years. And so the lack of data is part of that. There are very few rules regulating police—how they record information, how they report that information, whether it’s accessible to the public. And my particular area of specialty which is records pertaining to police misconduct—most states in fact have laws protecting that information from the public.
JB: Right. It’s interesting you mention police unions—they’re typically the main opponents of making misconduct records public. What do you make of this opposition?
RM: Sure. I mean the first thing I’ll say is in some ways police unions are not that different from other unions. Their job as they perceive it is to protect their constituency, the other rank and file police officers. Police unions have been a source of power for I’d trace it back to at least the nineteen sixties, in terms of their role in denouncing or protesting laws that could allow the public access to misconduct records. In New York and California in particular, there were laws that until very recently, pretty draconian laws that prevented release of information to the public. Those laws were both enacted largely at the behest of police unions, who were frustrated that defense lawyers in criminal cases were getting access to those records and using it to impeach officers. So that’s sort of the historical genesis of some of this resentment. But it’s not surprising that unions would want to prevent access to these records or that the patrol officer on the street would not want the public to have access to information about complaints against that officer. But many of the justifications that unions cite are not substantiated by data.
I recently did a study on this where I actually surveyed law enforcement administrators. And so the administrators are largely police chiefs and sheriffs on the question of whether their department has been harmed by public access to misconduct information. And the results were very interesting. There’s a lot more divide on this topic than the unions would suggest. There’s very little data to suggest that officers actually are harmed by disclosure. There’s also not a lot of data to prove that disclosing this kind of information has a causal effect on law enforcement misconduct. So I’m not suggesting that this is an open and shut case, but that the stance that unions take is not substantiated by data.
JB: I see, that’s super interesting. So you mention some of the draconian police privacy laws, and I’m assuming you’re referring to section 50-a in New York?
RM: Exactly, yes. Which was just recently repealed and is already the subject of lawsuits.
JB: Got it. And following the killing of George Floyd, have any other states or cities made similar reforms?
RM: Not that I’m aware of. On the issue of access to misconduct information, I’m not aware of any states passing reforms in this area. California did about a year before, a little more than a year before Mr. Floyd’s murder. So there is substantial change in the way California handles disclosure of misconduct records. I’m in Minneapolis right now, and it’s an issue that Minnesota is discussing, but the legislature has not been able to agree on any changes.
JB: I see. Hopefully there will be some progress made there soon. In addition to misconduct records, would you support more transparency in other areas, for example, requiring police departments to submit comprehensive use of force data to the government?
RM: Absolutely, I think that it’s a matter of transparency, but it’s also a matter of record keeping, as simple as that. There are a lot of police departments that don’t even keep anything close to accurate records on how often their officers use force or how often their officers are involved in incidents where a civilian was physically harmed. There’s not even terribly reliable national data on how often police officers kill people, so we are operating at a real dearth in terms of regulations surrounding record keeping and disclosure, both. So, yes, I would support transparency. But transparency only goes so far if you don’t have accurate data to begin with.
JB: Of course. Are there any states or localities you think provide a really good example of what police transparency and accountability should look like nationwide?
Well, there are approximately 12 states that have laws that favor disclosure of records, so I would point people—and I say approximately because it’s a little bit confusing when you really get down into the details of the laws and what they require disclosure. But generally speaking, most people knowledgeable in this area would agree that there are 12 states that presumptively allow disclosure of at least some misconduct records. That, of course, leaves a whole lot of states that don’t. And those states also vary in terms of how someone might overcome a presumption against disclosure or what kinds of records. What if there’s a limited subset of records that can be disclosed, but some of the most open states, for example, you could look at—so the study I did on this is called Law Enforcement Perspectives on Public Access to Misconduct Records. It’s a long title, but you could look at some of the states cited in that study- Georgia and Florida are two states, Ohio, Washington, Arizona—conservative states that favor open access to information, open records laws generally, and then more recently it has been you’re hearing more Democratic voices, generally speaking, calling for police reform. And so you get this really interesting mix of perspectives on the issue of public access to information about police misconduct.
JB: What are some specific things you’d like to see the U.S. Congress and the Department of Justice do not just to enhance the collection of data from police departments, but to enhance it in a way that is accessible and helps policymakers make better decisions?
RM: That’s a tough question in part because a lot of this is fairly local, there are so many thousands of police departments across the country that tend to be regulated on a municipal level, really, not even a state level, let alone federal.
But certainly, I mean, if you’re talking really low-hanging fruit, the Department of Justice during the Obama administration had at least a somewhat robust—the civil rights division set of investigations into police departments that had what they call patterns and practices of misconduct or abuse. Some of those investigations resulted in federal court oversight of police departments in New Orleans and Cleveland and Seattle, Ferguson was the subject of investigation, Chicago was beginning to be the subject of investigation.
The Department of Justice under—well, initially under—Jeff Sessions dramatically pulled back on those investigations after Trump was elected. I don’t think those investigations—I want to be clear—I don’t think that they are the be all, end all of police misconduct or anything remotely close to that. But I do think that they were important in collecting information about the breadth and depth of misconduct in some of these departments and in publicizing that information. The Ferguson report is just one example that has been cited many, many times by scholars and journalists and others.
So I think Congress could incentivize states to require better data and to disclose it. But I don’t actually put a lot of faith in federal oversight as the primary driver of change.
JB: Sure, that makes a lot of sense. So before I let you go, is there anything you’d like to add about this topic that I might have missed?
RM: I think actually most people don’t have much understanding of this issue at all, and they are upset, they are surprised and upset when they find out that they would not be able to look up a local police officer and find out if that person has a history of complaints filed against them. I think that they’re surprised when they find out someone like Derek Chauvin, the officer who killed George Floyd, has a lengthy history of complaints against him and that they can’t find much information about what those complaints, the subject of those complaints or why they were resolved with no discipline against Mr. Chauvin. It’s an area that people are upset about when they find out what they don’t know nearly enough about. It’s not been the subject of much discussion. So I appreciate that you’re trying to raise awareness about this.
JB: Yeah, I think it’s a really important issue, and I appreciate your willingness to talk to me about it.
As a result of the COVID-19 outbreak, many state and local governments are in dire straits.
With sales, restaurant, and hotel tax revenues collapsing, some localities have had to cut essential services and furlough frontline workers. At the same time, demand for unemployment benefits and Medicaid—which are partially funded by the states—has skyrocketed. To discuss the shortfalls state and local governments are facing and learn about potential solutions, policy analyst Julia Baumel spoke with Tracy Gordon, a senior fellow at the Urban-Brookings Tax Policy Center who specializes in state and local budgets.
Julia Baumel: Can you talk a little bit about the factors contributing to the budget shortfalls in state and local government, and why they are so serious?
Tracy Gordon: Right. So state and local governments are subject to a one two punch, basically, that when the economy is doing well, their revenues grow. But when the economy goes south, their revenues drop just as demand goes up for the services that they provide. So about two thirds of state and local budgets are for education, social services, health care, things that are in demand more. When people lose their jobs, when they lose income. And then states are subject to budget institutions, in particular balanced budget rules, but also limits on borrowing that make it difficult for them to adjust to a downturn. So typically in recessions, the federal government takes notice of that and provides some aid. But in the absence of that, it means that state governments have to either raise taxes or cut spending. And that could end up dragging down the economy and slowing a recovery.
JB: It’s been three months since the CARES Act allocated new funding for state and local governments. How far has that funding gone in terms of getting states the help they need, and in what ways has it fallen short?
TG: Yeah. It’s important to know that the CARES Act was really one of several actions that the federal government took, and the federal government really did a lot passing about 2.5 trillion dollars in relief—generally, not just to state and local governments—within three weeks in March. And before the CARES Act, there was the Families First Act, which increased the rate at which the federal government reimburses states for Medicaid expenditures. And so that accounts for about 40 billion dollars annually going to state and local government. And there was the CARES Act, as you mentioned, that included the Coronavirus Relief Fund of about $150 billion, and then additional money for education, about $30 billion and about half of that going to schools, half going to higher education. $25 billion for transit, additional money for community development, for child care. Little pots like that as well.
So all told, probably about $240 billion through those pieces of legislation. The only issue is that they basically treated this much like an act that preceded both of those as a public health crisis more than an economic crisis. So the increase in Medicaid reimbursements is tied to the secretary of Health and Human Services’ declaration of a public health emergency. And we don’t know how long that will last. The Coronavirus Relief Fund, that $150 billion, is for expenses that were not already accounted for in state and local budgets that were incurred to fight Covid, but incurred between March and December.
The Treasury has issued some guidance on the use of those funds. They were pretty clear in the beginning they were not to be used to make up for revenue shortfalls that states are suffering, but they’re taking a pretty expansive view of the kinds of expenditures that they can be used for. So things like public education spending that is going up because of remote learning as schools adjust and figure out how to do that, things like greater public safety expenditures, because now you have more need to sort of disinfect public spaces and, you know, police officers being repurposed for different needs just to maintain social distancing and that sort of thing.
So I think that’s given states some flexibility. But the magnitude is insufficient to the challenge and the timing is also an issue.
JB: Right. So unlike the federal government, most states are required to balance their annual budgets, as you mentioned. In the midst of COVID-19 and an economic crisis, what steps have they had to take to make that happen?
Yeah, you’ve probably seen there are a lot of reports about furloughs and layoffs in the news. So I think states and localities, much like households, try to do the things that are somewhat easy first. And so that typically means first one time solutions, like trying to find a way to shift money around, to push expenses off into the next fiscal year. So California’s enacted budget, for example, includes about twelve billion dollars in deferrals for education spending. And that means basically asking school districts to sort of take on that expenditure on their own and just wait. And potentially they could borrow and the state will pay them back. But you’re basically borrowing from one level of government to fund another, drawing down rainy day funds. California was fortunate to have about $20 billion, at least at the start of the fiscal year, in its rainy day fund. They’ve allocated about eight billion of that to help fill the budget gap.
States in general were very well-prepared going into this recession. They expected to close out the year with rainy day funds at an all-time high of about eight percent of their total expenditures. Cities similarly had built up those funds, but there was a lot of variation among places. You know, some places had put aside more than others, obviously, and really nothing could have prepared them for a downturn this magnitude.
So I think, you know, happy New Year, it’s the start of the fiscal new year in many states, in about 46 states. And most of those states have passed budgets, but a lot of those budgets are kind of place holders or temporary budgets where it’s almost like a continuing resolution at the federal level. In some cases, it is a continuing resolution or to just continue the prior year spending levels or else to have a prorated expenditure level that lawmakers can revisit on a monthly basis or a three month basis. And even California’s budget assumes that certain federal aid will be forthcoming. And if it’s not, there would be additional cuts. But I do think things like tax increases can be a lot harder politically and generally at the state and local level.
Public officials take their time to both put those kinds of proposals together and to get them passed. So I think as this crisis continues and of course, it all depends on the shape of the recovery, is it going to be a V, a W, a U, a square root sign. But it’s likely that it will continue into next year, especially given projections about unemployment. The latest CBO projections, which will be updated tomorrow, suggests that by the end of next year, unemployment will still be near nine percent, which is, near where it peaked in the Great Recession. So really quite elevated, and that really, based on historical relationships, that’s expected to have a very big effect on both state and local budgets.
JB: I see. You were saying, on average, states were pretty well prepared with their rainy day funds. But it seems like there was some variation. Were there some states that were particularly unprepared in terms of what they had in reserve?
TG: Yeah, I mean, I think if I remember correctly, Wyoming had reserves of more than its general fund. And that’s because of revenue from natural resources that can be also unpredictable. So in some oil producing states, they were already facing trouble before Covid because of the supply glut globally and the falling price of oil. But Illinois is known for not having great reserves and also facing other budget challenges, in particular from underfunding pensions. They had some revenue increases that were going to appear on the ballot anyway. And so, you know, it’ll be interesting to see what the political appetite is for that going forward.
And then states, their just general exposure to this crisis obviously is not the same. So there are these maps that show sort of the hotspots where the virus is occurring. And now it does unfortunately appear to be most of the country, but not every state has a revenue system that is as exposed as others. So sales taxes were the first to go as the economies sort of shut down. And I think it’s important to note, too, that, you know, some research has shown that the economy basically shut down when people feared going out. It really, you know, there was some substitution to online spending, some, you know, higher grocery spending as people were trying to stock up. But really, it didn’t have much to do with the actual, you know, stay at home orders from either state or local officials. So it’s been interesting to me this kind of federalism in action challenge about who gets to reopen the economy. The answer is really like, the economy gets to reopen the economy when producers and consumers feel comfortable going out there and engaging in transactions.
But anyway, sales taxes fell as people started curtailing their consumption and then income taxes fell because of this extension of filing tax deadlines. And that’s temporary. And it could be that as people start filing in what’s expected to be this month, although there were some rumors going around, the federal government might extend it again at least a week ago. But some of those revenues that were expected in April are going to come back this month. But then there’s a longer term challenge that if people are out of work, if people are working less, that will show up in income taxes. And if those economic losses are happening this year, that means next fiscal year for states.
JB: In Congress, there is bipartisan support for sending more aid to states. But some of the members on the right who are resistant to it say they don’t want to bail out fiscally mismanaged states with broken pension systems. What should we make of this argument?
TG: Yeah, you know, I spent some time looking at the Recovery Act and similar arguments came up then, and I certainly understand that, you know, it’s almost like federal lawmakers feel like they go through all the hard work of raising revenues. Why should they then write a check to mayors and governors who get to spend it? But there are certain inherent advantages to the federal government collecting revenues, you know, administratively. There are economies of scale. It’s harder for people to evade taxes by moving. And the evidence on that at the state level is less than what you might hear rhetorically. But certainly at the city level, people could get up and move in response to taxes.
So just theoretically, principles of federalism, it makes sense for the federal government to raise revenue and then disperse it to state and local governments to spend it in accordance with the preferences of their populations, their cause, their geographies and all that good stuff. That’s especially true in a crisis because of the dynamics that we talked about of this sort of one two punch of revenues going down just as spending is going up and the balanced budget rules. But, you know, again, it’s more challenging in a crisis because there is this sense of why should we bailout states that are potentially responsible for this crisis? I would just say in this particular crisis, it’s more like a category five hurricane that’s happening all over the country. Nobody caused this. Nobody really could have prepared for it. Many states were prepared for some kind of emergency, but not something like this, which is, you know, possibly a hurricane that lasts for two years.
And so, you know, I just don’t think it’s a productive time to sort of be you know, there’s that analogy of, you know, you don’t ask who set the fire before you put it out. I feel like in this case, it’s almost like when the house is on fire saying to the owner, I’d like to talk to you about your diet. You know, it’s just it’s certainly like pensions are an issue. Certainly states could be doing things in terms of structural imbalances and aligning revenues with spending. It’s not clear to me that now is the time to address those issues, those long term issues. The federal government has leverage and I can see why it might want to use that leverage to do that. But the longer that we wait, the more that we risk harm to the economy. And so that’s my concern.
You know, some of the proposals that are going around, like the Heroes Act, the SMART Act, which I haven’t heard a ton about lately, but, you know, they have formulas that try to base aid on local economic conditions. And I’ve written a little bit about this. It’s challenging because data can be preliminary, and revised, and messy at the state level especially. But to the extent that you have triggers and formulas in there, I think you have to worry less about overspending or sending money to the wrong places. And so I think there are ways to design the assistance so that those concerns are less pronounced.
JB: Right, and those kinds of triggers, or economic stabilizer policies, could also be a great way to avoid having to wait around for Congressional action. Are there any particular automatic stabilizer policies you think would work best?
TG: Yeah, I’m a big fan of—like with the Recovery Act—using the programs that we’ve got or the existing pipes was the analogy people made then. Then, you know, there’s some issues with existing funding formulas.
And I’ve been sympathetic to some of the criticisms, for example, of the title one formula for schools. But, you know, people know the formulas. They know how they work. And especially when it comes to Medicaid, that is a quick way to get money out the door in the recession. The Recovery Act was passed, I think, on February 17th, 2009. The checks went out the door on March 2nd, retroactive to October of the previous year. So states got a big slug of money that they weren’t expecting, which freed up resources for them. So they had to meet certain requirements and not cut eligibility for Medicaid, which also is a good thing in an economic crisis.
But as long as they were continuing to provide the same level of benefits that they did before the recession, they could basically keep spending what they would have spent anyway on Medicaid and then repurpose their own money for other needs as they came up. And I think that’s a very flexible way to direct aid where it’s most needed and could be basically expanded on with what already happened, the Families First Act. But again, at a magnitude that really is sufficient to the challenge.
JB: Sure, that makes sense. Before I let you go, is there anything on this topic I didn’t cover that you think would be useful for listeners to hear?
TG: You know, I think it’s useful to remember that it really is a partnership between all levels of government and some of the numbers going around right now are so eye popping. About trillion dollar gaps or five hundred billion dollar gaps at the state and local level. And I can understand the sticker shock that people have in government or just observers. But, you know, really, the state and local sector is essential to the economy, essential to people’s daily lives. The idea is to try to stabilize their budgets so they can continue to provide services that are critical every day, but especially during a health crisis. And they can continue to employ people, which is also important in an economic downturn. So, you know, I just hate to see sort of the “us versus them” way that this gets cast sometimes, although, of course, that’s inevitable.
But really thinking about, you know, all levels of government are engaged in the same enterprise, which is just providing services that people want effectively. And so thinking about, you know, how to do that best, you know, who should bear responsibility for what programs and revenues? I just think there’s a lot of room for thinking about that creatively, not just in this recession, but going forward.
Since the beginning of the COVID-19 outbreak, testing has been a topic at the forefront of our national discussion. Testing is a crucial component of any effective pandemic response plan, but the U.S. has faced some unique testing challenges with respect to both quantity and quality of tests. To learn more about the state of testing in the U.S. and our testing goals moving forward, as well as some effective strategies for meeting those goals, policy analyst Julia Baumel had the opportunity to speak with the director of the Harvard Global Health Institute, Dr. Ashish Jha.
Dr. Jha also practices internal medicine in Boston, and he teaches courses at Harvard Medical School as well as the Harvard T.H. Chan School of Public Health. In the fall, he will take over as the dean of the Brown University School of Public Health. Throughout this pandemic, it’s been his mission to share information about the virus and data-driven pandemic response guidance with a national audience of policymakers and citizens.
Julia Baumel: You’ve been working pretty tirelessly to share the facts about what is truly happening with this virus on every major news network from CNN to Fox, and you also recently testified before the House Select Subcommittee on the Coronavirus Crisis. Before we dive into the details of testing, I wanted to ask you about your experience sharing this important information in a hyper-partisan environment. As a doctor and as a scientist, do you feel confident that your message is getting through to policy makers and the general public?
Ashish Jha: You know, I do. And I find that most people are pretty receptive to information about things like testing, about coronavirus. And obviously a certain proportion of people take what I’m saying and try to put a partisan spin on it. But I have actually found that to be a relatively small number, a small minority.
And actually one of the few times where it’s happened was at the congressional hearing, surprisingly, when Representative Jim Jordan argued that my claim, which is widely accepted in the public health community, that our testing failures really were at the heart of a lot of the problems that the country got into. He called that a partisan attack, which I thought was surprising only because so few people I’ve encountered really think of testing as a particularly partisan issue. So that was a surprise, but I’d say other than that, there haven’t been very many instances like that.
JB: That’s pretty encouraging. So something that you and other public health leaders have worked hard to convey is that we still need more diagnostic testing for COVID-19 to reopen the economy safely. Your latest projection with the Harvard Global Health Institute set a new daily testing goal of 900,000 tests across the nation. Can you talk a little bit about that projection and how those results should be interpreted?
AJ: Sure, absolutely. So, you know, part of the question, when people say, well, how much testing do we need? Part of the way to answer that is to answer what are you using testing for? And why and how does testing help us keep our economy open? And, you know, there are different approaches to answering even that question. And of course, with different approaches, you get different results.
The approach that we took was we basically first try to make our best estimate of how many people are likely to be infected in the country on any given day. How many new infections are there likely to be around this time when states are opening up. And then ask the question, if we took a strategy where we tested everybody with even the mildest of symptoms and traced their contacts and tested those contacts. And first of all, that would be a pretty good strategy for keeping the amount of infections in the community low, assuming you could get everybody to isolate once they’ve been tested and tested positive. And we then did some calculations on, if that was our strategy, how many tests would we need across the country? And the answer was about 900,000 tests per day. And obviously, that varies a lot from state to state, partly based on population, partly also based on how big an outbreak the state has had. So states with large outbreaks need a lot more testing than states that have had relatively small outbreaks.
JB: You mention some variation between the states, and several states are starting to open up even though they haven’t yet built the kind of testing infrastructure you’ve recommended. Are you worried that we’ll see new outbreaks in these areas in the coming weeks and months?
AJ: Yeah, so when I think about the upcoming weeks and months, you know, the way I think about it is that there is no one secret sauce to keeping economies open and keeping states open, and the economies functioning and keeping people safe. I mean, it’s a set of different policies that you can put in. And testing—an adequate number of testing—and then doing tracing and isolation is a cornerstone. But it is not the only thing. And so if a state opens up with a lot of social distancing intact, universal mask wearing, let’s say their testing is somewhat inadequate, but still pretty decent and they had a declining number of cases before they opened, they can potentially get away with it. So the less testing you have, the more of everything else you have to do. I think of testing and tracing and isolation as, you know, kind of degrees of freedom. The more testing and tracing and isolation you can do, the more degrees of freedom it buys you in everything else. So if you open up with less testing, you’re just going to have less margin for error and less ability to do other things.
JB: Georgia is one of these states that started reopening a few weeks ago, and they’ve gotten some criticism for it. But some recent numbers suggest its COVID-19 caseloads might still be declining. What do you make of this? Do you think Georgia might have made the right choice, or is it still too early to tell?
AJ: Yeah, so there’s certainly some folks who think it’s still too early to tell. And these things can take several weeks and, you know, even four to six weeks between the time that you make a decision like this and you really see the effects.
It’s also entirely possible that those of us who worried about it—and it wasn’t just me, you know, Dr. Fauci, Dr. Birx, even the president said that he thought Governor Kemp was going too fast— it might be that there are some things about what has happened in Georgia that we don’t fully understand.
So, for instance, I think most of us believe that transmission outside of your home or outside of buildings happens much less efficiently than the transmission that happens inside. So maybe part of opening up is they’ve been able to maintain social distancing, gotten some people outside, and then there’s another kind of element which we’re still really trying to figure out, which is the effects of humidity and weather and temperature. And it may be that a combination of all of those things has let Georgia go faster than most of us thought it probably could.
You know, at the end of the day, there are two points that I sort of take from this. One is you want to be as data-driven as possible. But data-driven doesn’t mean that you’re going to make every prediction about the future correct. And second is you’ve got to let things play out over longer periods of time. And that’s why I try not to be overly prescriptive about what I think is going to happen over the next couple of weeks, because this virus continues to surprise all of us in some of the things that it does, how long it takes to manifest itself, et cetera. So good news on Georgia. I’m keeping my fingers crossed. But that said, you know, they’re not out of the woods yet.
JB: Yeah, that makes a lot of sense. The FDA recently approved the first antigen test for detecting COVID-19. Can you talk a little bit about the differences between this type of test and the more traditional PCR test, and how the antigen test could help achieve our broader testing goals?
AJ: Yeah. So, again, the big goal of testing, just so your listeners remember, is—the entire strategy of how to fight a pandemic, how to fight any outbreak, is—to keep separate infected people from susceptible people. Because infected people, when they come near contact with susceptible people, will pass the disease on and you’ll get spread of the disease and you’ll get exponential growth.
And so the question is, how do you do that? And obviously, shutting down the economy is one way, which is you just keep everybody at home. But the other way is to do, you know, really rigorous testing across large chunks of the population and try to really identify who is infected. And one of the problems of coronavirus has been there’s a lot of asymptomatic transmission, presymptomatic transmission, and that has meant that our testing strategies have to be much broader. We just have to be testing a lot more people. And the current way we test people is using something called RT-PCR, which is essentially looking for genetic material of the virus.
Antigen testing is something I’ve been very enthusiastic about, which is instead of looking for genetic material, it looks for antigens, or proteins that might be on the surface of the virus. And these tests are generally easier to do. They’re cheaper, they’re much faster. They tend to have certain types of error rates in them. Every test has an error rate. And the other thing is the antigen tests can be scaled up to millions of tests a day much more quickly than PCR can. So a lot of us have been waiting for antigen testing to come online. And the first one that got approved, it isn’t a great test. It’s not a super high quality test. I probably would not use it right now, but there are about 20 other companies that are working on antigen tests, and I’m confident one of them will end up having a much higher quality test and that will make it much more feasible for us to test millions of people a day.
JB: So assuming we do get something more reliable, would the efficiency of the antigen test make it the best bet for businesses that want to gradually start reopening? Say, for example, a medical center where outpatient surgeries are performed that wanted to test all patients for COVID-19 before they had their procedures.
AJ: Yeah, so there are probably two or three different new technologies that are in the works. You could potentially use the old one, the one we’ve been using so far, the RT-PCR. But I think antigen testing, there are some CRISPR-based technologies and tests that are coming down the pike—so there’s a few different opportunities where in ambulatory surgical centers, in hospitals. You can even imagine as air travel starts getting back up and running and people are going to want to feel more comfortable getting on an airplane. You can imagine that airlines could require that people show up a half hour early or an hour earlier than normal and get an antigen test before they board the plane with the idea that if they’re negative and if it’s a highly sensitive test, everybody’s gonna feel much more comfortable flying on that airplane. So I see all sorts of uses for this kind of rapid antigen test once they become higher quality and more reliable.
JB: That’s all pretty encouraging. At this point, what are the major barriers preventing us from scaling up diagnostic testing to where we need it to be, and what are some ways states and the federal government might work together to overcome them?
AJ: Yeah. So, you know, we have been making progress on diagnostic testing again through the RT-PCR. We were, about a month ago, we were at about 150,000 tests a day and now we’re up to about 300, 350. Again, our personal analysis—not my personal analysis, but our group’s analysis—is that that number should be closer to nine hundred thousand. And then there are others like Paul Romer, former Nobel laureate—or economist who has argued for like 30 million tests a day. So 30 million tests a day, you can’t do using PCR, but you could get to nine hundred thousand, theoretically, people being tested a day using PCR. But you’re going to require a very kind of aggressive look at the entire supply chain, ramping up various supplies, ramping up a testing strategy that lets you get to that nine hundred thousand number.
States are doing this on their own right now because the federal government has largely been absent from this entire process. They have a testing coordinator who is helpful on the margins. But what I hear from states is, and even what you I think hear from the administration in some of its policy briefs is a sense that, you know, they want 50 states to all go out and do this on their own. And the problem with that, and this is not really a federalism issue, you know, what’s state versus federal responsibility. This is just a practical issue. The supply chains for these tests are national and international supply chains. And so what you then have is states competing with each other, states competing with hospitals, states competing with other countries. And, you know, my take has been that big states like California might be able to figure it out on their own, but smaller states like South Dakota or Montana, they’re going to have a much harder time playing in an international supply chain, trying to outcompete, let’s say, Germany for some critical supply. It’s not really clear to me that that’s what we want our states to be doing, let alone competing with each other. So I wish the federal government was more willing to take a helpful role here. But states are kind of plugging along and trying to make, you know, solve all these issues and they are making modest progress.
JB: Now I want to shift gears and talk a bit about antibody testing, where there are concerns about accuracy and these tests potentially giving people a false sense of security. At this point, who should consider getting tested for antibodies, and how should these people interpret their results?
AJ: That’s a good question. So antibody testing is getting better. And the problem with antibody testing is not quantity, it’s been much more quality. What happened initially with antibody testing is, because the diagnostic testing for the virus was such a kind of calamitous failure all through February and March, the FDA’s approach on antibody testing was very permissive in March and April where basically almost everybody could get some sort of an emergency use authorization or some way to be able to get it out into the community. And what that has meant is that there are a lot of very poor quality tests. And there are a few very high quality tests, but there are probably about 70 or 80 antibody tests out there, and my sense is probably three or four of them are worth using and the rest are not.
And so every time there’s a new result of an antibody test, my first question is what test did you use and what’s the test characteristics of that test? The ways that I think anybody tests are really useful—and again, we’re going to assume that you’re going to use one of the really high quality tests—is first and foremost, as a public health person, I love it because it really teaches me a lot about how much has the disease spread in a community, how many people have been infected that we didn’t know about. We know that because of our limited testing capacity, a lot more people were infected than were tested positive. And so it really tells us a lot about the disease spread, in which communities, and which types of patients.
But the second is this idea that maybe it allows some people who’ve tested positive to then feel comfortable that they’re immune from reinfection, and maybe that changes what they can do, what kind of business they can do, how quickly they can get back to work. And this is the idea of the immunity passport that a lot of folks have been pushing. And my caution on that is, first of all, you want to make sure you’re using a really high quality test, because even tests that sound pretty good on paper, like a ninety five percent specificity will mean, in a low prevalence population if you apply that test, half or more of the of the positives will be false positives. So you don’t want to be telling people that they have a positive test when there’s a 50 percent chance that it’s a false positive. But the second is, and just as importantly, you want to make sure that even if you have a true positive result—you have antibodies—you want to be sure that those are truly protective. Because if not, you’re going to give people a sense of confidence that they can go out and do things that then can get them infected again.
Now, this is a place where the science really has changed, I’d say even in the last three weeks. Three weeks ago, I would have said not everybody who was infected generates antibodies and antibodies may or may not be protective. The science here in the last few weeks has evolved so that it looks like almost everybody who’s been infected and clears the infection does develop antibodies. And it looks—and we haven’t really nailed it down—but it does look like those antibodies should be protective. But I think it’s probably another couple of months away before we have the science that’s going to be comfortable enough that I would recommend to a patient that they think of themselves as immune, just because they have antibodies. I just think we’re close, but we’re not quite there yet. And of course, the cost of getting it wrong is very high because if somebody thinks they’re immune and they’re not, they might get infected again and get sick.
JB: So like you said, there are still so many unreliable tests on the market, but also a handful of good ones from private labs like Abbott and Roche with specificity rates close to 100%. How might breakthroughs like these change the antibody testing conversation?
AJ: Yeah. So first of all, I do think you really need to be using tests with a specificity greater than 99 percent. If you do the math, you see very quickly why it is. But if you have a low prevalence population and if your specificity is worse than 99 percent, you’re going to just get a ton of false positives. A large proportion of people are going to be false positive. So you don’t want that. But assuming and I do think that, again, there are a few tests now which are high quality enough that they can be used and you can feel confident that if you get a positive result on that test that you really are positive. Those tests, I think, will help a lot, again, in helping us both understand the level of the spread of the disease, but also giving us some better sense of, you know, what’s happening in specific communities. Or if you want to test your employees and know which ones are positive, I think it can be helpful. The key, again, is don’t assume that their positive means that they’re necessarily immune. I think they probably are. But, you know, probably is not probably good enough for people to act differently based on that.
JB: How far can research get us in terms of understanding exactly how immunity manifests? In other words, do we just have to wait and see how it plays out for people who have recovered? Or is there another way to get insight on immunity faster than that?
AJ: Yeah, so there’s a whole big debate about how to quickly understand what level of immunity it is and, you know, obviously if there were no ethical constraints in our lives or just there were no such issues, one thing you could do is you could just try to reinfect people who’ve been previously infected and cleared the infection.
And these challenge studies are actually being proposed. Obviously, you’d never do this without people’s consent. But there is talk of taking people who have recovered and then actually exposing them to the novel coronavirus and seeing if they get reinfected. I have, as you might imagine, a lot of concerns about that. There are real ethical issues. And if you’re wrong, these people might end up getting very sick or even dying. And so any experiment that, you know, exposes people to severe risk has to be thought through very, very carefully with a lot of consent and a lot of discussion.
There are other things that people are proposing, which is, of course, to track high-risk people over time. So let’s say physicians and nurses who’ve recovered. If you track them over time, because they’re being exposed a lot more than the average person, they may be somebody who if after a long enough period of time, none of them have gotten reinfected, you may feel pretty confident that they really have immunity. So there’s a lot of efforts, I think, that will get us much further along. I suspect in the next two, three months we’ll have a lot more information and a lot more confidence about this than where we are today.
JB: That’s pretty exciting. So you’ve mentioned using antibody testing as a public health professional to do some really useful analysis at the population level. But like you said, the false positive rate is going to be pretty high if not enough of the population has already been exposed. At what point in this outbreak do you think that type of analysis will be meaningful, and how should it be used to guide policy decisions?
Yeah, so first of all, it’s always helpful to know how many more people have been infected than you’ve identified. And there are a lot of studies now that have tried to quantify that question. And overall, my synthesis of the literature is, kind of in my head, as I read through all the studies, is that we’re finding that about 10 to 20 times more people have likely been infected than have been identified. So in New York City, if you just look at the straight up infection numbers, it looks like it’s about one and a half percent of the population. But then if you look at the antibody test, it’s about 20 percent of the population. And so that’s helpful because if it’s 10 to 20 X, you can look at that for the country. So for America right now, you know, as of today, May 19th, about half a percent of the population that has been found to be infected. And my best guess then is it’s probably five to 10 percent of the actual American population that’s been infected. Well, that’s useful. It tells us a couple of things. One is that we’re nowhere near herd immunity. Some people talk a lot about, you know, could we reach herd immunity? Yeah, that’s at 60, 70 percent of the population being infected. Right now, we’re probably five to 10 percent of the population, and already ninety thousand Americans have died.
So we don’t want to try to herd immunity strategy. But some cities like New York that are at higher levels, 20, 25 percent, it tells you that, there’s a pretty broad set of people with immunity there. And that’s useful to understand from what the economic implications for New York are. And obviously, the last part is the antibody testing tells us which communities have been really hard hit. And so as we think about the future, we really need to design policies to make sure that, for instance, minority neighborhoods, poor neighborhoods which have really borne the brunt of this disease, are protected much more in the next waves that will come down the pike.
JB: Yeah, absolutely. Before I let you go, is there anything about any of these types of testing that I didn’t cover that you think would be important for the general public to know?
AJ: You know, the thing I would say about testing is it’s obviously gotten a lot of attention. Part of the reason it’s gotten a lot of attention is because our approach to testing has been so abysmal, certainly compared to most other, or many other, high income countries. In some ways, it’s gotten too much attention. Ironically enough, and I realize I’m part of the problem because I’ve been raising it a lot. But the reason I would say it’s gotten too much attention is this should have been done day one. This should have been done early. Testing should not be a major constraint, a well-functioning public health system and a well-functioning government should have ensured that we had plenty of testing because testing is just a step towards disease control. Because then it’s testing, then you’ve got to trace people, you’ve got to isolate them. You’ve got to come up with strategies for how you do supportive isolation so people are willing to take time off of work and be isolated. How do you protect nursing homes? How do you do appropriate social distancing?
There’s a ton of issues that tend not to get enough attention because we haven’t sort of fixed the first order of business of just getting testing going. And so part of it is I look forward to a time—and I do think it’s going to happen—when testing constraints won’t be the single biggest issue that prevents us from really being able to handle the outbreak and that we can then move on to the more interesting and complicated challenges. But testing has been such a debacle, again until very, very recently, that has really made focusing on the entire pandemic much, much harder.
JB: Well, fingers crossed that we’re able to move on from testing to those other big steps pretty soon. And that’s all I’ve got, so I just want to say thank you so much for your time. This has been really informative, I really appreciate it.
AJ: It was my pleasure, and thanks for reaching out and talking to me about all of this.
Voting by mail has been a major topic of discussion in the lead-up to the November general election. Keeping large crowds away from the polling place seems like a good way to promote public health and participation in our democracy. But it’s easier said than done, and voting by mail raises several important questions about feasibility, fairness, security, and the role of the federal government.
On this episode of Centering on Coronavirus, policy analyst Julia Baumel speaks with three experts on the topic: Amelia Showalter, a political data analyst; Robert Stein, a professor specializing in elections and voting behavior; and Tammy Patrick, a former county elections official. Published works from these three guests are linked throughout the transcript along with other resources mentioned throughout the episode. The full list of links is also available at the end of the transcript.
After you listen, be sure to check out the accompanying issue brief, “Voting During a Pandemic,” to learn more about how the COVID-19 pandemic has changed voting as we know it.
Julia Baumel: My first guest is Amelia Showalter. She is the former digital analytics director for President Obama’s 2012 reelection campaign and the current CEO of a data analytics consulting firm in Washington DC.
Amelia Showalter: My name is Amelia Showalter. I am the co-founder and CEO of Pantheon Analytics, which is a small data analytics and data engineering firm that I started with Evan Zasoski, who was my teammate on the 2012 Obama campaign. We basically do bespoke data analysis and one of the things that we’ve focused on just kind of by accident, I guess, is vote-by-mail. I’ve always been kind of interested in it just because I’m originally from Washington State, which is an entirely vote-by-mail state, and it was in the process of going to be all vote-by-mail when I was leaving for college. So it’s a topic that I was interested in, but I just happened to get approached a few years ago by some folks who wanted to learn more and wanted to dig into the data. And these people later formed the National Vote at Home Institute. And so I’ve just been kind of on the vote-by-mail beat for a few years now. And of course, now with the pandemic and planning for election administration, it’s become quite a topic.
JB: She talks about the different categories of all-mail voting systems and how these systems might help promote both public health and voter participation in November.
AS: I mean, the benefits are pretty clear from my research and from other research. We basically see that going to an all-mail ballot system—which I want to say up front, because people get kind of upset about this. When we talk about vote-by-mail, we’re kind of lumping in several categories. So what I really mean in that case is ballots get mailed out to all voters. They don’t necessarily have to return those ballots by mail.
In fact, Colorado, which I think is really one of the best examples of this system, they mail ballots out to everyone, but then they have lots of different ways that people can return their ballots. There’s lots and lots of drop sites where people can drop their ballot. So that’s not technically returning by mail. People can still go and bring their ballot in and essentially vote in-person, but it’s still a mailed ballot.
But regardless of how the system works for returning those ballots, it seems pretty clear that states that do vote by mail—Colorado, Washington, Oregon, now all of Utah, see an increase in turnout, which is great. I mean, even under normal circumstances, that would be something to strive for. But now that there are going to be safety hazards to large groups of people congregating, standing in line, I think it’s even more important that voting by mail or at least being able to receive your ballot in the mail and figure out safe ways to drop that ballot off to get that ballot counted. It’s going to be even more important.
JB: With Pantheon Analytics, she authored two widely cited studies on the turnout effects of vote-by-mail systems in Utah and Colorado. In both states, she saw an overall increase in turnout- especially among voters she predicted to be less likely to participate.
AS: Basically what I did in both states is I used what we call a turnout score. This is something that we use more on the campaign side than on the research side, but we model how likely voters are to turn out. So there might be people with a 30 percent chance of voting or people with an 80 percent chance of voting. And that’s all just based on people’s vote history. In Colorado, for instance, when they switched to their vote-by-mail system in 2014, we could look at the estimated likelihood of everyone turning out and then see how they actually turned out. So we took all those people that were estimated to have a 30 percent chance of turning out. And what we found is that, in fact, 40 percent of them turned out. Maybe it was more than that, I don’t remember the exact numbers. And so that was sort of a positive sign for vote-by-mail. However, I didn’t see strongly partisan effect there. It mostly seemed to benefit people who weren’t regular voters who weren’t very out at the extremes of the partisanship spectrum. And so if Republicans are worried about vote-by-mail, that it’s suddenly going to help a lot of Democrats, certainly Colorado didn’t didn’t show that to be the case.
Then when I went over to Utah, to look at that data, that was actually a more useful way to look at pretty much everything on this topic, because they had some counties, but not all counties, switch to vote-by-mail in 2014 and 2016. Now, all the counties have switched over. But we had this nice period where we had kind of our pseudo-control group of counties that hadn’t switched. And then we had the counties that had switched, and we could look at expected versus actual turnout in those different types of counties. And again, I saw a huge bump in turnout. Vote-by-mail seemed to boost turnout by 5 to 7 percentage points, which is really, really huge. Maybe it doesn’t sound very big, but that actually is a really big turnout effect. In Utah, I found that there was maybe a slight edge for Democrats, that vote-by-mail seemed to boost their turnout a little bit more than it boosted Republican turnout, at least relative to their expected turnout. But in raw numbers, I’m not sure I made much of a difference. Utah just has a whole lot more Republicans. So even if they didn’t get quite as big a boost as the Democrats did, Republicans in Utah are still doing okay. So my own particular research does not find that this is a strongly partisan issue. It mostly is just a civic issue.
JB: So now I want to ask you about the recent New York Times analysis of the Wisconsin primary results that you were quoted in. And unlike all these other studies, including yours, it concluded that mail in ballots did overwhelmingly support this liberal candidate—I think it was for the Wisconsin Supreme Court. How do you interpret these results and what do you think they might mean for the future of voting by mail?
AS: I really don’t draw the same conclusion that the article did, or at least the article’s headline. And I totally understand that headlines sometimes get written by—not by the same people that did the reporting. But what was found in that analysis is that among people in Wisconsin who voted by mail, they were voting by double digits, I don’t know if it was 12, 15 points higher rate for the Democrat, or for the progressive candidate, than for the conservative candidate.
But I think the important thing to remember there is that there’s self-selection. This is a “correlation does not equal causation” situation. And I don’t think that was conveyed very well in The New York Times article. I wish it were. And I tried to actually explain that to the reporter. I think in Wisconsin, the most important thing to remember is that something like 80 or 90 percent of people in any given precinct were voting by mail in the Wisconsin election. And that’s really unusual, both for Wisconsin and just for any state that isn’t already fully vote-by-mail. Usually if it’s an absentee state, maybe you have 10 percent, 20 percent of people voting by mail. And so the people who vote by mail are kind of the unusual ones.
Well, in this case, it’s flipped. So the people who were voting by mail in Wisconsin, that was the norm. And I think what you really have to think of is who are the people who are voting in person in the middle of a pandemic? Are they in some way unusual? And my feeling is that probably, to me it would be not surprising if they were more conservative voters, because there are also people that are choosing not to vote by mail and are choosing to go out. We have seen so many studies showing that people on the conservative end of the spectrum are not taking this pandemic as seriously or are considering it a hoax. I’m not saying everybody. I think a lot of conservatives are taking it seriously. But again, if it’s 10, 15, 20 percent of your voters are choosing to vote by mail, I think it’s less that we should look at mail being good for Democrats and we should look more at the self-selection factors that cause somebody to, in this particular case, vote by mail versus voting in person.
JB: My next guest is Rice University Professor Robert Stein. He’s studied elections and voting behavior for decades, and he’s done lots of work helping states and localities implement vote-by-mail and other convenience voting systems.
Robert Stein: I’m a professor of political science at Rice. I’ve been here at Rice since 1979. My current—and probably for the last more than a decade—principal areas of research are public policy, but with an emphasis on election administration and voting behavior. Since probably the mid-1990s, I have been studying what you might call convenience voting—different ways in which people can cast a ballot. It started with something called early voting, which Texas was one of the early—no pun intended—states that adopted allowing people to vote before election day at different locations and different hours.
That moved into work that I did for several presidential commissions. I was a staff member of the Baker-Carter—James Baker and Jimmy Carter—Commission. And again, I worked on the Obama Presidential Commission focusing on long lines and my research focused again in both of those commissions on ways to improve the voting experience, both in terms of convenience, speed, efficiency, cost.
Over the years, I’ve written papers and consulted with local governments, but probably the things I’m most known for among election officials are two things. One, the Election Day vote centers, which are essentially early voting on election day, or where if you live in a county like Kings County, Staten Island, better known as Richmond, you can vote anywhere in the jurisdiction and always get an appropriate ballot that allowed for using a smaller number of larger polling locations where you could have maybe 100 machines, lots of parking spaces, shorter lines, lots of poll workers to help voters.
I’ve since worked on the vote-by-mail systems in Colorado. I was given funding to study things like the cost reduction, the efficiency, the ballot completion, and a very peculiar thing that happened to vote-by-mail, particularly in these states that have—sending everybody a ballot. The peculiar way in which people return their ballot. And then I should say, in full disclosure, my work has been supported by the National Science Foundation, the Pew Charitable Trusts, the Arnold Foundation, Rice University, the Baker Institute. I’m sure there’s somebody else who’s getting enough money. But most importantly, I’ve been funded by lots of counties. Right now, I am literally looking at data from poll workers around the country about their concerns and preferences for how we will handle the upcoming election not only in November, but in the primaries coming up in May, and June, and July.
JB: He also mentions increased voter turnout as a major selling point for vote-by-mail. He tells me about some of the states with well-established, universal VBM systems where up to 80% of all votes are cast by mail. In many others, mail-in voting rates are nowhere close. If these states want to scale up mail in voting by November, they have a lot of work to do, and they’re likely to face some roadblocks along the way.
RS: There are about a handful of states that mail a voter a ballot before every election. In the three, five states, seven states, the share of votes cast by mail is well over 79 percent. That’s pretty good. But in the other 43 states, the share of votes that are cast by mail is 11 percent. So for those states, those other 43 to 45, depending on how you count, what will it take to get them from that 10 percent to let’s say 50 percent, which would be extraordinary and nowhere near the 80 plus percent in states like Oregon, Colorado, Washington?
Well, it takes a lot. First, you’ve got to mail everybody a ballot. You say, well, that’s not a problem. Everybody is registered and has an address. Unfortunately, the addresses on most voter lists don’t match the Postal Service’s delivery, which means that if you were to mail in my state, the 16 million registered voters, a ballot, maybe ten to twelve percent would come back undelivered. And not surprisingly, people move around. People don’t give their actual address when they register to vote. The only reason you have to give your address and prove you live there with a driver’s license or some other certificate, the utility bill, is so they can get you the right ballot on election day for the precinct you live in. And what kinds of voters do you think are likely not to get their ballots in the mail? Younger voters, black voters, voters who tend to be more residentially mobile. That’s your first problem.
Second problem, you’ve got to make up ballots. You’ve got to print them. In Colorado and Oregon and Washington, they took two years perfecting and getting contracts and finding people who could not only print those ballots, but print them in a form that could be mailed, get an envelope that could be mailed, with the return postage. Oregon came up with my favorite because I’m a big origami person, a brilliantly folded ballot, but again, finding those people, those companies, in the midst of a coronavirus? I think Oregon and Colorado tell me—I work with Colorado a lot—it took them about two to three years and they started with low-turnout races.
Then there’s this other problem. Most people, as I mentioned, in these 43 states have not ever voted by mail. They don’t know how to vote by mail. Which means what? They have to know the state’s law regarding when you request a ballot and who can request a ballot. Now, 36 of the 50 states have no-excuse mail-in voting, which means anybody can request a ballot. Knowing that you can request a ballot is one thing, knowing how and when is another. Knowing how to fill out the ballot, you say, well, what do you mean, fill out a ballot? But how hard can that be? Trust me, you’ve never probably taught with optical scanning sheets. But students and voters make mistakes. They can’t get that little dot properly filled in. They miss it, and the optical scanners can’t properly count their ballots. Worse is that many voters don’t know when they have to return the ballot, where to return their ballots, how to return their ballot- by mail or in person. And finally, many voters don’t remember to sign their ballot.
Oh, and did I mention that the communities that are conducting these mail elections now have to have enough personnel, enough what we call scanning machines, to process those mail ballots so they can report the results on election night.
JB: As for the Wisconsin primary, Professor Stein also expressed some skepticism about the causal inferences drawn by the New York Times on the partisan effects of voting by mail. Rather than any unfairness inherent to the system, he says Democrats simply did a better job of mobilizing their base to vote by mail—something Republicans have also done in the past.
RS: Causation. It shouldn’t be confused with things that happen together—covariation. That’s the problem with people thinking about mail-in voting, particularly both Democrats and Republicans. One thinks that it helps the Democrats, one thinks it helps Republicans. They’re both wrong. The causation is reversed. People want to vote by mail because a party or candidate or interest group is so mobilized, I’m so motivated to do so.
In that story, I think it was by Mr. Epstein, he pointed out or he had quotes from two Republican and Democratic operatives. The Democratic operative said, “We knew we were going to have trouble when the state Supreme Court said we couldn’t change the primary date, couldn’t even change how many days after Election Day people could return ballots. We were in trouble. And we organized and we worked hard.” The Republican counterpart to this Democrat said, “We were caught flat footed, we weren’t ready, we blew it.”
In 1978, California radically relaxed requirements for mail-in voting. In that year, the Republicans, realizing that their base was older, and might be more likely to turn out if they could vote by mail, engaged in an enormous effort to increase not only Republican voter turnout, but Republican turnout among elderly voters to dramatically turn that election around in 1978. My point? The method is not the reason for people to vote by mail, Democrat or Republican. The method is there to be used strategically. And when a party or candidate strategically uses one method of voting, and they do so at the advantage over their competitor, there’s an effect. That’s what happened in Wisconsin.
It’d be like saying the following: the Yankees bunt real well and the Dodgers don’t. Should we get rid of bunting? We could. But maybe the Dodgers should just learn how to bunt better. Both parties engage in a strategy to win. Sometimes their strategies are better. You probably read the Politico story about how the Biden campaign is just way behind the curve on digital campaigning—and they are, probably. Well, should we get rid of the Internet? No.
I’ve been working on this for the better part of 20 years. People who adopt these changes never ask the serious causal inferences. Because of that, they get bit in the rear end. And I think in the case of both Democrats and Republicans, as is often they do now in the highly polarized environment, they talk right past each other.
JB: So how should states prioritize both safety and practicality when designing their plans to expand vote-by-mail for November?
RS: The virtues of vote-by-mail are absolutely true. But the virtues of mail voting require an investment that the next hundred and seventy five days we will not make. So the answer to the question, what do you do about vote-by-mail? You try to scale it up as best you can, but don’t scale it up to the point where you can’t run an effective, efficient, fair, accessible, election.
Basically, my logic is the same as the epidemiologist. Lower the curve, spread out the voting. People will have to vote in person. They will have to risk their well-being, their health. In Wisconsin, we saw evidence of that on election day—300,000 compared to almost a million, I think probably voted by mail. It’s possible that things get much worse rather than better. If we don’t inject Lysol into our veins, maybe we’ll be alright. But my sense is that we will be seeing 3,000 different ways in which people can vote and those correspond to the counties. And what I would say, my last parting shot on this, something to think about: you can hold an election with very few voters. We do it a lot. You cannot hold an election with very few poll workers. Poll workers are to the health of a democracy what doctors, nurses, custodians, technicians, first responders are to the health of the society. And at this point, I would say both are very much under siege.
JB: Some other important issues involved in the vote-by-mail discussion include election security and the role of the federal government. To discuss those, my final guest today is Tammy Patrick, former federal compliance officer for the Maricopa County Elections department in Arizona and current senior advisor to the elections team at the Democracy Fund.
Tammy Patrick: So I was a local election official in Maricopa County, Arizona. The time I was there, we had about two million registered voters. I worked there for more than a decade as the federal compliance officer. In my role there, I did all of our submissions to the Department of Justice under the Voting Rights Act, oversaw our language program—and at the time we were covered under the Voting Rights Act for both Spanish and an unwritten Native American language of the Tohono O’odham. I also oversaw all of our voter assistance programs. So I did all of our ballots that we did in Braille and large print. And I served as a liaison, and still do, for the National Association of Election Officials to the United States Postal Service. They have something called the Mailers Technical Advisory Committee, or MTAC. And I’ve kind of been a liaison and representative between the election field and voters and the Postal Service when it comes to things like voting by mail.
During my time in Maricopa County, in 2012, when we saw those long lines at the polling places and voters waiting six, seven, eight hours, and then President Obama very famously said we needed to fix that, he appointed a commission, the Presidential Commission on Election Administration. And I was very honored to serve on that commission.
After our report came out on the American voting experience, I then moved from Arizona to Maryland and worked in Washington, D.C. at the Bipartisan Policy Center. While at BPC I published a report called “The New Realities of Voting by Mail.” And that report is still very salient today. It really talks about how we need to align our state laws and our expectations to fit with the new and current Postal Service, what their delivery standards are, that sort of thing. After serving at BPC or working at BPC for about three years, I transitioned over to the Democracy Fund. I now serve at that foundation as a senior adviser to their elections team.
JB: Great, thank you. So first of all, some believe that a massive nationwide expansion of voting by mail is going to be what’s necessary to make sure that the election in November is both safe and fair. But then others, including the president, don’t agree. How do you think we should think about the benefits and drawbacks of voting by mail?
TP: So there are a couple of things to know. First of all, when we talk about voting by mail— some states call it absentee voting. And that is that across the country, we have a patchwork of the way in which elections are conducted and the state laws that either allow or set certain parameters on who can vote by mail. And so the different ways in which a state sets up that voting policy will really inform what happens in November. It’s important to know that all states have security measures in place, some level of voter authentication, to make sure that it is, in fact, the voter who’s requesting that ballot. And so there are security measures that definitely ensure that if there’s anything happening with someone fraudulently casting a voter’s ballot or receiving a voter’s ballot, that there are protocols in place to catch that person. And that’s where we’ve seen that happen recently. And that’s what’s important to know first and foremost is that there are security measures in place, and that when fraud does occur—and it’s very, very minimal—it’s caught. And that’s what’s really critical. And I think that that’s the first and foremost thing we need to know.
The next thing we need to kind of think about is that, as we look across the landscape of the nation, we have states in a wide spectrum. So everything from mailing a voter’s ballot out to every single registered voter for every single election, and five states do that currently. It started in Oregon and then Washington state, Colorado, and most recently, Utah and Hawaii have added their names to the list of all fully vote-by-mail systems. Now, we do have a handful of other states that have the majority of their electorate voting by mail.
So Arizona, California, Wyoming, there’s a whole bunch of western states where large portions of their voters are already voting by mail anyway. They are more uniquely positioned in this COVID moment to service those voters well and transition quickly to increase capacity. Now, the next phase of what we see around the country is that there are states where anyone can request a ballot to be mailed to them. And so those states, traditionally, some of them have seen a growth in vote-by-mail. And that’s kind of what we see is this evolution of voting by mail where, when voters are provided the opportunity to do so, they do it, they tend to like it, and then continue to vote by mail as they move forward. So what we’ve seen in these states, and some of them have pretty good adoption rates. Some are relatively low, like in Wisconsin. I can talk about them for a minute. They had a traditionally fairly low number of, or percentage of, vote-by-mail voters. And in this moment, of course, we’ve seen in the recent primary election that huge numbers wanted to vote by mail in this moment where we’re all sheltered in place. So one of the things that I think we need to know is that those states that allow anyone to request a ballot by mail, you are going to have large volumes of voters doing so.
In elections, oftentimes we look to former election cycles to see and try and gauge what we need to do to allocate resources and understand how to service our voters in the best way. Some of that has to be set aside because we’re in a very unique situation. So we know that voters are going to want to vote more by mail than in the past. We just don’t know how much more.
So I think if six months ago you had asked election officials in Wisconsin, which in one of the former elections they just had a couple of years ago, they had about 168,000 voters reported as having received an absentee ballot. Now, the majority of those were actually in-person absentee. They didn’t get them by mail. So if you had told them six months ago they were going to have more than a million voters—I think the final count was something like 1.4 million—request a ballot, they would have laughed at you. They would have said there was absolutely no way that’s going to happen, and yet it did. So in those states, they need to be prepared.
And it’s going to be a real challenge for them, because oftentimes they have to, the voter has to submit an application. And that application needs to be data entered, it needs to be verified. And that all doubles the time and doubles—not entirely doubles the cost—but it increases the cost of what it takes to conduct that part of providing the voter with their ballot.
This last phase or group of states are those states that also require an application for the ballot, but they also require a reason, or an excuse, in order to get it. And traditionally in those states, it’s you’re over 65, you’re permanently disabled, you’re going to be out of town that day. There are a variety of reasons. Now, in this moment, many of those states have said, we agree that a global pandemic is an illness. So check off the box that says “illness” and we’ll allow anyone who wants to vote by mail to vote by mail. Now, just recently in Louisiana, we saw the Secretary of State wanted to offer that to everyone, and the legislature said no. So in this moment, we have election officials at both the state and local levels that are trying to service voters in a safe way and provide them an opportunity to still participate, but know that there can be court challenges to that, legislative challenges.
And that’s where whatever the landscape is today, it’s potentially going to change for our June primaries. It’s potentially going to change in November. So the most important thing in this whole piece is that voters really need to be aware of what their options are and make sure that they verify their voter registration information is current and up to date. So any mailings that get sent out, they’ll get. And many of the states that do require an excuse—hats off to Rhode Island and to Georgia and others who sent out applications to their voters so that they know that they can, in fact, request a ballot by mail. And so it’s really incumbent upon voters in this moment to make sure that their information is correct, make sure they understand the parameters of what they need to do in order to get that ballot by mail if that’s what they choose to do, and then also understand what they need to do in order to get it returned in time to be counted. And we can talk a little bit about some of those parameters as well, because they are both security and access measures.
JB: Yeah, I’d love to hear about some of those, too. The kind of security and access measures, for example, that might help prevent fraud or voter coercion or ballot harvesting, as they call it.
TP: So there are policies—and you mentioned a number of red flag terminology, the button-pushing words, as it were, that people like to use. And I think that they’re very emotional words, right? We want to understand that our elections have integrity, and that only eligible voters are voting, and that all eligible voters that attempt to participate have that happen successfully. That there isn’t anything put in their way to impede that ability to participate. So here are a few things to contemplate. There are a variety of laws that are implemented across the country, whether it is you need a notary in order to submit your ballot back to the state, or you need a witness to witness that you’re the one signing the affidavit that you’re mailing back in. Or you have to make a copy of your photo I.D. and mail that back in with your ballot. Or that there can’t be any sort of ballot collection by anyone outside of a family member, what have you. All of those things at the surface sound as though they are security measures. And I guess to some degree they are. But in reality, it’s kind of window dressing.
The most recent and, quite frankly, one of the only examples of election fraud that we’ve seen in decades in this country, in North Carolina, they had almost every single one of those things in place. They had anti-harvesting laws. They had a witness requirement. They had all of these, quote unquote, “security measures” in place. But oftentimes what those things really do is inject another person into that voter’s voting experience. What I mean by that is that in states where I get my ballot as a voter, I vote my ballot. I put it in the envelope, I seal it, I sign it, I drop it in the mail because it’s postage paid. I don’t have to go out. I don’t have to get a stamp somewhere, especially in these COVID times. People aren’t supposed to be leaving their homes. I don’t have to have someone else sign it. So I don’t have that intimidation or coercion or fraudulent potential being inserted there because I have the autonomy to vote my own ballot and return it in time. Those are a couple of policies that really bolster the security of the ballot. The other piece is that if you’re a state that prepays the postage and if you’re a state that allows for either a postmark or the intelligent mail barcode, some of the tracking—and we can talk a little bit about ballot tracking through the Postal Service in a second.
If you allow for those things, if it’s the weekend before Tuesday’s election day, and I’m a voter and I’m taking my time with my ballot, I haven’t voted it yet. I haven’t turned it back in and I don’t finish it until maybe Sunday. So I’ve missed Saturday’s mail, even. If I’m in a state where I know it can be postmarked on Monday, then I can still put it in the mail and mail it back in and it should be fine. Or if I’m in a state that allows me to drop it in a drop box, by providing those return options, I really negate the need for me to hand my ballot over to a stranger knocking on my door. But there are certain situations and communities where if they don’t have regular postal service, a lot of rural communities, particularly places like in Indian country, there are some challenges to daily postal delivery. If I’m in one of those places, I may have to have someone else take in my ballot. The other challenge in that piece of it is that the Postal Service recommends you put your ballot back in the mail one week before it’s due, so basically Tuesday before Tuesday’s election.
There are many, many states that allow a voter to request a ballot as late as Saturday. Yesterday was an election day in Ohio and voters could request a ballot up until noon on Saturday, which meant it didn’t go out in the mail until Monday. First class delivery standards are two to five days for the Postal Service.
So there are state laws that sound like they’re empowering voters to make those requests late in the game. But really, they’re setting voters up for failure. So we have to think about how the various state laws actually play out in what I refer to as the “new reality” of voting by mail, because they may sound like they’re a security measure when in fact they’re not securing anything, it’s just window dressing. Or they may sound like they’re empowering voters when in fact, they may be setting them up to fail. And so there are things that election officials have been advocating for that hopefully state legislatures will start listening to. Because, ultimately, it’s all about whether or not eligible voters can interact with our elections process in a successful manner and making sure that all eligible voters are able to participate, and individuals who are not eligible are prevented from doing so.
JB: Right, that makes sense, just kind of avoiding the need for anyone but the voter to get involved. And you mentioned some of the ballot tracking mechanisms some states use. I think it’s something Colorado has in place, and it’s worked pretty well. Can you talk a little bit more about those?
TP: Yeah, so I have been steeped in some of the Postal Service work for a number of years, particularly as it relates to voting by mail. And it always surprises me how much I don’t know. And so, for your listeners, they may have noticed on the mail that they receive a couple of things. One is on the front, there is a barcode, oftentimes that’s right there by your address. That’s called an Intelligent Mail barcode. That Intelligent Mail barcode is what helps the mail go through the mail stream in a faster, more efficient way, because a lot of it is automation now. It’s no longer the case that there are postmasters putting mail into cubbies. I always laugh when I watch “Miracle on 34th Street” at the holidays and see the Postal Service where they’re putting these things in these massive cubbies. So that’s not the case anymore. The Intelligent Mail barcode contains the voter’s address, it contains the class of service. It also contains the information that this is an official ballot and the Postal Service needs to expedite it and increase the service and make sure that it gets back to either the voter or back to the elections office.
Also on your mail, you may have noticed on the back of the envelopes, oftentimes you’ll see these weird orange marks that look kind of like a barcode. And they are, that’s actually processing marks. And that contains the time and date stamp in the same way that a postmark does. So what’s important about both of those types of barcodes is that it can be used to improve the voter service. One is with the ballot tracking. There are a variety of services—you mentioned Colorado, the state of Virginia has done it, many other jurisdictions all across the country—which allows the voter to know the ballot has been mailed to them, when they should receive it, and then also when they mail it back, it lets them know everything was fine. Or, you know what, you forgot to sign it. Or, your signature didn’t match. And a really important element of ballot tracking is the curing ability.
And I’d like to think about the curing of the ballots when there isn’t a signature or when the signature doesn’t match really as a security measure. It’s absolutely true that it helps eligible voters make sure their votes get counted. But it also would be the only way you would be able to identify fraud if, in fact, fraud was happening. I will tell you, I have called—over the period of a decade or more that I was in Maricopa County in Arizona—I called hundreds, if not thousands of voters when those two things happened, either it was missing a signature or it didn’t match. And not once did I have a voter say, “Well, I never voted. It wasn’t my ballot.” But I did have them tell me, “Oh, that’s crazy you called. My hand is in a cast. I had to write with my left hand,” or “I most recently suffered a stroke. And it’s changed the way I write,” or, “I was really in a hurry and I was signing it on the dashboard of my car while I was driving down the highway,” and some other even crazier answers. But I think that’s an important piece of it, is when something is amiss or awry, that you reach out to the voter, and that you find out why that is the case.
So the ballot tracking is a great way for the voter to know what’s coming to them. And even in states where they don’t have ballot tracking, I think it’s important for everyone to know that they can sign up for a free service from the Postal Service that’s called Informed Delivery. And what Informed Delivery does—you sign up online—it sends you an e-mail every morning with a picture of what is going to be in your mailbox that day. So I have a post office box, I live in rural Maryland. And every morning I get an email that shows me what’s going to be in my post office box that day so I can decide if I’m going to go and pick it up or not. It’s important because most recently I got the message that I was going to have a ballot coming to my mailbox that day. And lo and behold, there it was. So that’s a free service that allows everyone to know when their ballots are going to be put in their mailbox. And that’s a real bonus because, one, it’s free. Two, it lets the voter know that that ballot should be there. So if it’s not, they can ask other members of their household if they got the mail, and where’s their ballot, what’s going on with that. And if they don’t receive it, they can call into their local elections office and find out what the situation is or request another one.
JB: That’s super interesting. I never knew that service existed. I’m definitely going to have to look into that.
TP: It’s really a fabulous, fabulous service. And I think it adds a whole nother level of security in the vote-by-mail environment.
JB: Yeah, it really sounds like it. Now just kind of pivoting to the federal government’s role in all this. Obviously, states control their own elections. But given the crisis, do you think Washington should try to take a more active role in shaping state voting practices?
TP: So I think that that’s a really good question, and I think that question gets a variety of answers. I think in this particular moment, we are seeing some real challenges that election officials are trying to service the voters in a safe and secure way.
But unfortunately, what we’re seeing is that far too often there’s this insertion of partisanship and politicizing this and almost weaponizing the situation as a way to inject certain either policies or obstacles for voters. So when it comes to who should lay out the foundation of how our elections work, I think the federal government certainly plays a role in ensuring that all Americans have equal access to the ballot. I think that this is a point in time when state and local officials desperately need financial assistance in conducting these elections, particularly because local governments have been hit really hard by the coronavirus as well as everyone has.
But I’m hearing from local election officials that in this moment when they’re being asked to conduct elections in a different way, needing to do things with the potential to need to purchase new equipment and need to go into contracts with vendors to provide vote-by-mail ballots, they’re actually being asked by their local governing authorities to reduce their budgets by 20—I’ve heard as high as 20 percent. So I think that the federal government definitely has a role to play in helping to provide the necessary resources. And that is something that we are sort of seeing. So some would say, “Well, what do you mean? There were just 400 million dollars set aside for states to conduct their elections.” But sadly, that was with a 20 percent match. And what I’m hearing from some states is that they’re going to have a really hard time coming up with that match in order to draw down any of those federal dollars. And that’s really unfortunate because they desperately need some additional assistance right now.
JB: Right. And you were starting to get at my last question, which was going to be about the CARES Act and that $400 million allocation, which many people think would have been way too little even if there hadn’t been that match requirement. Do you think that, if significantly more is allocated, states will be able to pull off huge expansions of voting by mail by November?
TP: So one of the most precious resources we have is time. And when I think about 2020, I always make sure that we think that this as still two phases, because we have many, many states, almost half the states, that still have elections they have to conduct before we get to November. And that is the remaining primaries this spring. And then many of them have their own state primaries later on in the summer and fall. So the precious time that we have for our legislatures to respond to the state and local election officials is running out. Many of those legislatures are either wrapping up in the next couple of weeks and some of them already have. So the time that we have for people to make a decision on what’s going to happen in November is as precious as the dollar amount that local and state election officials are going to receive.
And so I think it’s really kind of a twofold challenge in that none of us know anything anymore. None of us know what November is going to bring. Will we be in a similar situation? Will it be worse? Or will things have gotten miraculously better? So, because we don’t have a concrete answer, there are many who are loath to make major changes in the way in which the elections are going to be conducted. And the problem there is that we don’t want to be in a situation where we are doing too little, too late.
We don’t want to be in a situation where an election has already started and the parameters, the guidelines, the rules are changing. And that’s what we’ve seen play out in the primary session. In the primary season, we’ve seen litigation and legislation and changes in how the election was going to be conducted up until the night before an election on Election Day. So that’s what we want to avoid in November. The one thing that’s important, I think, for your listeners to understand is that the November 3rd date will not change. That’s very different from the primaries where the states have the ability to set the date. November 3rd is November 3rd is November 3rd, and that’s when the election will be held. And so it’s going to be incumbent and we need to make sure everyone is aware of what they need to do in order to participate. Part of the challenge in all of this is that, here we are, global pandemic. We’re sequestered in our homes going on weeks and weeks and weeks at this point. And I think that the American electorate is both frustrated and they feel isolated.
And for me, the one thing I want to make sure that everyone hears and knows is that the vote power is still there. The voice of the people is still there. The challenge is that, and what could possibly be different, is that the ballot box may not be at a polling place in November. The ballot box might be your mailbox.
Pantheon Analytics/Amelia Showalter: “Colorado 2014: Comparisons of Predicted and Actual Turnout” and “Utah 2016: Evidence for the positive turnout effects of “Vote At Home” (also known as Vote by Mail) in participating counties“
Reid J. Epstein, The New York Times: “Vote by Mail in Wisconsin Helped a Liberal Candidate, Upending Old Theories”
Barry Burden, Robert Stein, and Charles Stewart III, The Washington Post: “More voting by mail would make the 2020 election safer for our health. But it comes with risks of its own.“
Bipartisan Policy Center/Tammy Patrick: “The New Realities of Voting by Mail”
U.S. Postal Service: Informed Delivery
Angry young men.
They’re the common denominator in the vast majority of America’s mass shootings, including the horrific tragedies in El Paso and Dayton.
Instead of focusing so much on the political leanings of the perpetrators or the weapons they used, Congress should get to the source of the problem and ensure angry young men can’t get ahold of dangerous weapons.
In 2017, individuals between the ages of 17 and 24 committed 34.8% of all murders. The “age-crime curve,” the observation that criminal behavior increases during adolescence and tapers off in adulthood, is one of the most consistent findings across studies on criminality over time. The reason is rooted in psychology. According to Dr. Howard Forman, a professor of psychiatry and behavioral sciences, “[t]he preponderance of young men engaging in these deadly, evil, and stupid acts of violence may be a result of brains that have yet to fully develop.”
Many studies show that the prefrontal cortex of the human brain, which is responsible for impulse control, judgment, and long-range planning, continues to develop until at least age 26. Until the prefrontal cortex is fully developed, the limbic system, which is responsive to social and emotional factors and responsible for reward seeking, dominates the adolescent brain.
A similar phenomenon can be observed with motor vehicle fatalities. Like gun use, safe driving requires impulse control and sound judgment. Drivers between the ages of 16 and 24 are significantly more likely to be involved in car accidents than older drivers, with risk peaking in the early twenties and declining dramatically at age 25. Rental car agencies recognize the extra safety risk associated with the underdeveloped adolescent brain. Most major companies require drivers to be 20 or 21 years old to rent a car, and they typically charge an extra fee to renters under the age of 25.
Both cars and guns are inherently dangerous, killing tens of thousands of Americans each year. But while gun deaths have skyrocketed, meaningful policy changes have cut motor vehicle deaths nearly in half since 1980. We need to start treating guns more like cars.
Consider the rigorous safety checks involved in the process of obtaining a driver’s license, with some state-by-state variation. Before age 16, you must take a written safety test to obtain a learner’s permit, which allows you to drive a car with a licensed driver in the passenger’s seat. Six months after receiving a permit, you become eligible to take a driving test, assuming you have completed a minimum number of driving hours or driver’s ed classes. If you pass the driving test, you receive a junior driver’s license, which allows you to drive with a limited number of passengers during a limited range of hours during the day. Around age 18, assuming a clean driving record, you can receive an unrestricted license.
Under federal law, there is no minimum age requirement to purchase a rifle or ammunition from a private, unlicensed dealer. According to a February 2018 Harris Poll, 84% of all Americans support a federal law that would prohibit any individual under the age of 21 from purchasing a gun, regardless of firearm type or dealer licensing status.
“No gun under 21” is a common-sense and compelling policy option to stem the tide of gun violence. Recently, Senate Majority Leader Mitch McConnell suggested he would be open to raising the smoking age from 18 to 21. Guns, cars, and tobacco are all lethal, so why not treat them all accordingly? And Congress should consider going even further, allowing a form of provisional gun ownership between the ages of 21 and 25–with exceptions for people serving in the military–that would require a license or a parental co-sign for the purchase of a gun.
While a minimum age requirement is not a panacea for gun violence, it addresses the biggest problem that is plain for all to see.
Julia Baumel is a policy analyst for The New Center, which aims to establish the intellectual basis for a viable political center in today’s America.