In legal matters, whether criminal or civil, there is something called the “chain of custody.”
This is a properly documented chronological trail of how evidence is supposed to be handled by authorized people. If that chain is broken in any way, the evidence becomes inadmissible in court.
A Chain of Custody Form is used to provide information that the evidence was properly handled. Each person handling the evidence must indicate on the form what was done with the evidence. Gaps in handling must be accounted for. If the evidence is stored, it must be in a secure location. Any activity such as an unauthorized person examining the evidence can be considered tampering.
Chain of Custody is an extremely important feature of a properly functioning legal system.
In archeology, the tracking of who owned what and when, along with other test results, can be an important factor in determining whether an artifact is genuine or fraudulent.
There is another situation where chain of custody is very important. That is in our ballots to elect public officials. Here, it is called an audit trail.
An accurate audit trail must exist from the layout and printing of the ballots to the final vote count and archival storage of the ballots.
Some governments are mailing out — or planning to — ballots for the 2020 November election. There are several potential problems with this.
When this happens, presuming that the ballots delivered to the US Postal Service are the real, official ballots, once these official ballots leave a given post office, the audit trail is broken.
The Postal Service generally does an excellent job of processing mail, but there are occasional problems. In a massive mailing of ballots, there are going to be errors.
In April, 2020, Wisconsin held a primary election. Several problems occurred. Many people requested absentee ballots to vote by mail. Thousands of such ballots were never sent by the Postal Service. Others were reportedly sent, but people claimed they were never received.
But that is only the beginning of potential, even likely, problems in such a contentious environment where great divisions exist. All of the following problems have occurred with mail.
- late, delayed, undeliverable, mis-delivered, lost, and other mail difficulties
- unreadable postmarks for determining the mailing date
- mail not postmarked at all
- mail postmarked too late
Will the Postal Inspection Service be able to step up and make sure everything goes smoothly, fairly, and accurately for the elections — at least as far as the Postal Service is concerned?
But what about the rest of the voting process? How do we guarantee a fair and accurate election?
Other possible problems exist in an election using vote-by-mail methods.
- mail stolen from mailboxes
- people bringing in large numbers of unverified ballots late in the voting period
- verifying that the ballots actually represent the votes of the people they were meant for
- verifying that the signatures on the ballots are actually those of the intended voter
- non-citizens voting
- other entities printing and distributing fake ballots
After voting ends, the audit trail must be maintained. These regulations and procedures may vary somewhat in different localities or regions, but are documented for each. They provide for how the ballots are collected, counted, and transported to a storage facility.
However, if the voting itself is improper, those regulations and procedures don’t make any difference. The flawed results are embedded in the ballots.
We’re not claiming that these problems will occur to any great extent, but recent history indicates a significant risk.
In May of this year, Paterson, New Jersey, held a vote-by-mail election for a City Council position. The results were so rife with ballot fraud that a judge has declared that a new election must be held.
In the 2018 North Carolina election for the 9th District House of Representatives seat some fraud was committed. A new election was called for, but not held until September 2019, almost a year later.
Would citizens be happy waiting a year for the November results?
What happens if many of these types of situations develop in the November 2020 election? How many elections will be ruled invalid and have to be done again?
Delays in the final results, if the Presidential and Congressional elections are involved, could be significant for the nation. When could new elections be scheduled? Would the resulting court battles and many holidays interfere with people re-voting relatively soon?
A major situation involving several states in a Presidential or Congressional election determining votes in the Electoral College or Congressional seats could be disastrous for the country.
If you can vote in person or bring your ballot to your polling place, there is a better chance of a proper count. A famous politician has said, “[voting by mail is] a harder system to administer, and obviously it’s a harder system to police writ large.” … “People showing up, people actually showing ID, is still the easiest system to assure total integrity.”*
With the Covid situation, people voting in person on election day may face large crowds trying to make their vote count. Systems provide for early voting. We have done that, and have never experienced a significant line in waiting to vote.
Absentee ballots are a rather more nearly secure means of voting as opposed to straight mail-in ballots. One must request a ballot be sent to them, with generally a driver’s license number or other ID and a signature provided before a ballot will be sent. A submitted ballot should include that same information.
We haven’t seen any official mailed ballots yet, but if the vote-by-mail system is handled something like absentee ballots should be, where some types of identifying information such as a driver’s license number or other official ID and a signature are required, it could lend credibility to the vote.
California will mail ballots to all registered voters. L.A. county requires a signature on the outside of the return envelope, postmarked on or before Nov 3, but allows 17 days for it to arrive. This could delay the final election results and add to uncertainty in a nation accustomed to immediate outcomes.
Whatever the outcomes of this election, there will almost certainly be challenges for one reason or another. We just hope the nation will survive them without additional violence.
*Gov. Andrew M. Cuomo, New York Times, April 9, 2020.