Colorado voters began receiving their ballots last week for the upcoming November 3 midterm elections, setting the stage for decisions on races and ballot measures impacting local, county, state, and federal government. Questions regarding mail-in voting security, its effect on participation, and the extent of political influence on election outcomes before ballots are cast are common.
These questions were central to a recent presentation sponsored by the League of Women Voters of Estes Park. Grant Hayden, the Richard R. Lee Jr. Endowed Professor of Law at Southern Methodist University’s Dedman School of Law, delivered the insights. Hayden, a part-time Estes Park resident, specializes in labor law, voting rights, and corporate governance.
Hayden’s assessment of mail-in voting was reassuring: despite political claims of election fraud, research shows little evidence of widespread wrongdoing. He stated unequivocally that "there is no evidence of widespread fraud, generally speaking, when it comes to voting." However, his outlook on partisan gerrymandering was less optimistic, identifying it as a growing threat to representative government.
Colorado is among eight states that automatically mail ballots to eligible voters. Another 29 states allow voters to request absentee ballots without a reason, while 13 states require specific conditions. Hayden explained that studies indicate mail-in voting typically boosts voter turnout by approximately 2 to 4 percentage points, with a 2021 Colorado study reporting an 8-percentage-point increase. These gains can be pivotal in close elections, but Hayden noted increased participation does not systematically favor either major political party.
Mail-in voting also reduces election costs. A Colorado study cited by Hayden found universal mail-in voting decreased county election expenses by about 40 percent. Another benefit is the ability for voters to thoroughly review ballots at home, research candidates, and consider complex ballot measures.
Hayden described mail-in ballots as a secure voting method because they are paper ballots, completed by hand, signed, and subject to verification. He described this process as the gold standard. Election officials use safeguards including signature matching, voter registration checks, ballot tracking, secure drop boxes, and post-election audits. Research estimates about four cases of election fraud per 10 million votes cast. Hayden also referenced the Heritage Foundation’s election fraud database, which identified 10 instances of mail-ballot fraud in Colorado over 20 years that resulted in criminal charges, amidst tens of millions of ballots cast. While fraud occurs, including isolated cases, Hayden said such incidents, like a 2018 North Carolina congressional election fraud scheme, do not show widespread fraud threatening election outcomes.
Hayden identified voter mistakes and missed deadlines as more significant concerns with mail-in voting. Paper ballots cannot warn voters of errors like selecting too many candidates or overlooking contests. Ballots can also be rejected if unsigned, if signatures cannot be verified, or if they arrive late. While Colorado allows voters to correct signature problems through ballot curing, completed ballots must reach election officials by 7 p.m. on Election Day; a postmark alone is insufficient. Hayden also cautioned against interpreting delayed election results as evidence of fraud, noting election-night totals are unofficial and processing mail ballots can take time. He criticized Amendment 84, a proposal requiring additional identifying information on mail-ballot envelopes, describing it as a solution looking for a problem, questioning its fraud prevention efficacy and warning of increased costs and rejection of legitimate ballots.
While confident in mail-in voting, Hayden warned that partisan gerrymandering poses a growing threat to representative government. The term “gerrymandering,” coined in 1812, describes drawing electoral boundaries for partisan advantage. Hayden explained two techniques: cracking, dividing opposing voters to dilute influence, and packing, concentrating them into few districts. Both can allow a party to win more legislative seats than its voter support would otherwise indicate.
He cited North Carolina’s 2018 congressional map, where Republicans won 10 of 13 seats despite a closely divided electorate. During 2016 redistricting, Rep. David Lewis, a Republican, famously stated his intent to draw maps to give a partisan advantage, aiming for 10 Republican and three Democratic congressional seats. Hayden noted computer simulations can identify extreme partisan maps; in 1,000 simulations of North Carolina’s districts, none produced 10 Republican-majority districts. He cautioned, however, that disproportionate results alone don't prove gerrymandering, as voter geography also affects outcomes.
A turning point occurred in 2019 when the U.S. Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering claims are political questions beyond federal courts. Hayden disagreed, arguing statistical analysis provides workable identification methods. The ruling left states responsible for addressing partisan gerrymandering through their constitutions, laws, and independent redistricting commissions. Colorado voters approved independent commissions in 2018 to draw boundaries. However, Hayden warned states increasingly redraw districts between census cycles for partisan gain, citing Republican efforts in Texas and Democratic efforts in California. He suggested federal legislation could provide a national solution but expressed little optimism for immediate congressional action.
Hayden’s presentation offered two contrasting assessments of American elections: secure, accessible mail-in voting increases participation, but partisan gerrymandering can undermine how votes translate into representation. The challenge, he suggested, is not just ensuring secure ballot casting, but ensuring those ballots carry meaningful weight.