{"id":21440,"date":"2020-12-07T07:47:27","date_gmt":"2020-12-07T11:47:27","guid":{"rendered":"https:\/\/antilla-martinique.com\/?p=21440"},"modified":"2020-12-07T07:47:27","modified_gmt":"2020-12-07T11:47:27","slug":"faut-il-retablir-le-vote-par-correspondance","status":"publish","type":"post","link":"https:\/\/antilla-martinique.com\/en\/faut-il-retablir-le-vote-par-correspondance\/","title":{"rendered":"Should we reinstate mail-in voting?"},"content":{"rendered":"
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By Jean-Pierre Camby, Associate Professor at the University of Versailles Saint-Quentin,<\/strong>
\nand Jean-\u00c9ric Schoettl, former secretary general of the Constitutional Council<\/strong><\/p>\n

The debate over voting procedures regularly returns to the forefront: voting systems, the electronic distribution of campaign materials, proxy voting, absentee voting, and so on. This last topic certainly deserves closer attention: the health crisis has served as a pretext for numerous debates. But should we reopen paths that were closed because they were dangerous?<\/p>\n

\u00abThere are certain areas within the electoral process where fraud is more prevalent than elsewhere because the ease with which it can be committed creates an easy temptation, an added inclination, and at times an almost indecent provocation. \u00bb So spoke the rapporteur for the law of December 31, 1975, which put an end to absentee voting, in the National Assembly1<\/sup>. This law did not merely abolish it. It replaced the repealed provision (mail-in voting) by extending proxy voting to 31 categories of citizens, including those who \u00abare away from their homes on Election Day for professional or family reasons.\u00bb To facilitate the use of this method, an amendment was also passed at that time removing the requirement that these \u2019reasons\u00ab be \u00bbcompelling.\u00ab.<\/p>\n

Since then, the\u2019Article L. 71 of the Electoral Code<\/a> will have undergone four amendments, notably to allow retirees to take advantage of this voting option2<\/sup>, and in its current form to establish an unconditional right. Everything has moved toward expanding the possibilities for proxy voting, the scope of which is now very broad, without the debates highlighting the infringement on the secrecy of the ballot.<\/p>\n

To borrow Keynes\u2019s analogy of the horse that cannot be made to drink if it is not thirsty, voters cannot be forced to go to the polls. While abstention is an alarming symptom regarding the health of representative democracy and the trust placed in elected officials, it cannot be combated through coercion. Making voting mandatory would be a Gribouille-style approach that would produce perverse effects and is of dubious feasibility in France.<\/p>\n

On the other hand, making it easier to vote remotely\u2014to borrow this term from the current health crisis\u2014encourages voter turnout while ensuring that the voter\u2019s intent remains intact.<\/p>\n

Admittedly, the lack of such conveniences does not, on its own, explain voter abstention. A simple technical convenience increases voter turnout only marginally. One could even argue that, when tainted by the suspicion of fraud, a convenience such as mail-in voting\u2014which breeds skepticism about the results\u2014discourages participation.<\/p>\n

More specifically, two serious obstacles appear to stand in the way of reinstating absentee voting. The first, which led to its abolition in 1975, is the risk that the voter\u2019s intent might be compromised. The second relates to the insufficient reliability of the checks. These two obstacles are very often intertwined when addressing the issue in practical terms\u2014that is, by answering the questions: Who votes? How do people vote?<\/p>\n

Absentee Voting: Who Votes?<\/h2>\n

The precautions taken to ensure the reliability of electronic or mail-in voting\u2014particularly with regard to guaranteeing the anonymity of votes\u2014cannot protect voters from indiscretion or pressure from those around them when they cast their ballots. This argument regarding \u00abfamily voting\u00bb is recognized, even by supporters of mail-in voting, as \u00abvalid.\u00bb3<\/sup> : \u00abWhile concerns about \u00abfamily voting\u00bb\u2014which reflect the pressure exerted by family members on the prospective voter\u2014are legitimate, it should nevertheless be emphasized that this type of issue cannot be entirely ruled out in in-person voting (or voting by proxy), as the influence of family or other ties may not be negligible.\u00bb It is clear that voting by mail (whether electronic or postal) opens the door to pressure and even control by family members4<\/sup>. No one can guarantee secrecy once the ballot is placed in an envelope or electronically validated. Nor can anyone say for certain who is voting.<\/p>\n

This is a fundamental difference from proxy voting, where the question of \u00abwho votes\u00bb has a simple answer: the proxy holder, on the understanding that the principal may always choose to vote in person (Articles L. 75<\/a> and L. 76<\/a> of the Election Code). Furthermore, the provisions regarding proxy voting limit the impact of pressure, for example by preventing a person under guardianship from granting a proxy to someone who has authority over them (Article L. 72-1<\/a> (of the same code). Moreover, the election judge must take a strict approach whenever there is sufficient suspicion regarding the validity of a proxy vote. In the absence of any conclusive evidence, how can this approach be applied to absentee voting?<\/p>\n

How do I vote by mail?<\/h2>\n

Voting by mail is not a panacea for solving the problems posed by the pandemic in holding elections. It does not, for example, resolve issues related to the election campaign or to the operation of polling places; rather, it complicates their work. As Chantal Enguehard points out5<\/sup> : \u00abThe weak point of voting by mail is the delivery of ballots. Envelopes containing ballots can be intercepted (they are easily recognizable) or simply be delayed; failure to receive them at the polling station constitutes a violation of the integrity of the vote. Even though postal services are supposed to respect the confidentiality of mail, envelopes can be opened and ballots revealed, in violation of voting secrecy. There are also techniques for determining the contents of envelopes without even opening them. It would theoretically be possible to secure the postal system by widely adopting registered mail and tamper-proof envelopes, but the cost of such measures is exorbitant (\u2026). Envelopes can be destroyed or replaced after they are received by the central counting office.\u00bb.<\/p>\n

Voting by mail places a heavy responsibility on mayors. Yet local officials are sometimes already accused of manipulating voter rolls.6<\/sup>. There are numerous possibilities for late receipt of ballots, registration errors, incorrect sorting of ballots, and irregularities in the counting process, while there is no way to verify the voter\u2019s identity, especially when the signature on the identification envelope cannot be matched to a signature sample on file at city hall (as is the case with automatic registration on the voter rolls). The example of the United States should serve as a cautionary tale.<\/p>\n

What can be said about electronic voting? First, it does not provide an absolute guarantee of secrecy, authenticity, and reliability\u2014or rather, that it can offer such guarantees only within the framework of technical processes that will never provide the same transparency as the manual counting of paper ballots by a diverse team of election officials. How, then, can we dispel our fellow citizens\u2019 deep-seated doubts about it? Even voting machines (which, however, do ensure voter identification and do not eliminate the need for a voting booth) have inspired too much mistrust to claim they can rival in-person voting at the polls.<\/p>\n

The examples from other countries that are sometimes cited\u2014particularly that of Germany\u2014overlook certain French-specific factors that preclude their direct application: the fragmentation of local government, lower trust in institutions, and the persistence of fraudulent practices and pressure on voters at the local level.<\/p>\n

But then, one might ask, why allow absentee voting for French citizens living outside France (Article L. 330-13 of the Electoral Code)?<\/h2>\n

With regard to French citizens living outside France, voting by mail was accepted as an alternative method only because of the specific circumstances of voting abroad: requirements for registration on the voter rolls, the number of polling places, the neutrality of consular services, distances, transportation difficulties, etc. However, the procedures are precarious and conditional: for the election of members of the National Assembly, they are subject to an expert assessment, including for any substantial modifications: \u00abIf, in light of this expert assessment or the circumstances of the election, it appears that the hardware and software cannot guarantee the secrecy of the vote and the integrity of the election within the meaning of Article L. 330-13<\/a>, \u00bbthe Minister of Foreign Affairs may, by decree issued after consulting the National Agency for Information System Security, decide not to implement the electronic voting system.\u201d For the Assembly of French Citizens Living Abroad, following the cancellation of elections in 20107<\/sup>, the Decree of March 14, 2014<\/a> provides only for electronic voting; this provision eliminated secret balloting.<\/p>\n

These same specific circumstances also served to justify postponing the election of the electoral college responsible for electing senators representing French citizens living outside France, as well as the corresponding change to the term of office for those senators: \u00abThe legislature has, by Article 13<\/a> of the Act of June 22, 2020<\/a> (\u2026), postponed by one year the election of representatives of French citizens living abroad and consular delegates, which was originally scheduled for May 2020. This postponement is justified by the organizational difficulties in holding this election caused by the global COVID-19 pandemic, which could not be overcome by the remote voting methods applicable to these elections.\u00bb8<\/sup>.<\/p>\n

It is difficult to see, in the context of the pandemic affecting the territory of the Republic (except, perhaps, during lockdowns) a situation analogous to the one that justifies mail-in voting for our compatriots living abroad\u2014a situation that remote voting, moreover, \u00abcannot remedy.\u00bb.<\/p>\n

Admittedly, there is a risk that the pandemic could discourage certain voters\u2014the elderly and those who are most isolated\u2014from going to a polling place. But how, then, can we ignore the drawbacks of mail-in voting, both in terms of the election\u2019s reliability and the absolute trust that voters must have in their polling place and voting booth? These drawbacks seem to us to carry the most weight, especially since it is possible\u2014as was the case for the second round of the 2020 municipal elections\u2014to expand the options for proxy voting.<\/p>\n

1 Mr. Jacques Limouzy, Official Journal of Debates, Year 4, December 1975, p. 9366.<\/sup><\/p>\n

2 The provision was amended following its implementation in accordance with the text: Joint Municipal Council of Vigneulles-les-Hattonch\u00e2tel, No. 108557, December 22, 1989.<\/sup><\/p>\n

3 E. Kerrouche, Senate Document No. 127, November 14, 2020.<\/sup><\/p>\n

4 The Council of State echoed this view in its 2010 public report, No. 61, p. 148.<\/sup><\/p>\n

5 Analysis of Vulnerabilities in Three Methods of Remote Voting. Legalis.net, 2008, 3, pp. 13\u201331. ffhal-00409408f.<\/sup><\/p>\n

6 R. Rambaud, AJDA, November 18, 2019, p. 2265; B. H\u00e9din, AJCT 2016, p. 626.<\/sup><\/p>\n

June 16, 2010, 7 C.E. No. 329707<\/a> and, on the same date, 329196.<\/a><\/sup><\/p>\n

8 CC, July 30, 2020, No. 2002-802 DC<\/a> ; J.-P. Camby, *Petites affiches*, June 18, 2020, No. 122, p. 7.<\/sup><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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