October 30, 2020

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Will Courts Pick the Next President?

4 min read

Georgia’s voting deadline is unambiguous: Absentee ballots are due when the polls close on Election Day. Late arrivals are meant to be set aside, stored, and eventually destroyed without being opened. That’s what state law says, and the way to protect democratic legitimacy in an anxious age is to run elections by the book.

But in the Twilight Zone of 2020, everything is apparently up for grabs. Last Monday a federal judge issued a preliminary injunction that orders Georgia officials to count all ballots postmarked by Election Day, even if they don’t show up until three days later. The suit was filed by the New Georgia Project, a group founded by Democrat Stacey Abrams. The judge expressed a reluctance to “interfere with Georgia’s statutory election machinery,” but she concluded that “the risk of disenfranchisement is great.”

Similar litigation is taking place across the country. Pennsylvania’s Supreme Court last Tuesday accepted a lawsuit filed by the state Democratic Party, and officials suggested last month in a separate case that ballots be counted if they arrive by Nov. 6, even if the postmark is missing or illegible. In Ohio, the League of Women Voters is challenging the process for verifying signatures. Minnesota has waived its rule that absentee ballots must be signed by a witness, and the state Supreme Court is weighing an appeal of that suspension, brought by President Trump’s campaign.

If the presidential election is decided by a whisker, with Donald Trump or Joe Biden leading by some thousands of votes in a few states, a court ruling could prove decisive. The pivotal jurisdictions will be flooded with Republican and Democratic lawyers, and the resulting chaos could resemble the 2000 Florida recount, with smudged postmarks as the new hanging chads.

The simple fact is that mass mail voting introduces slack into the election system. Unrealistic deadlines are one problem. For an election held on Nov. 3, voters in 10 states can request an absentee ballot on Nov. 2, according to a report last week by the U.S. Postal Service’s inspector general. During this year’s primary season, the audit says, more than a million ballots were sent to voters in the seven days before an election, placing them “at high risk” of tardiness.

The Postal Service audit describes how seven USPS processing centers performed from April through June. About 8% of identifiable election and political mail, or 1.6 million pieces, was delivered late. Don’t blame the new Postmaster General, Louis DeJoy: He took over June 15.

Some states try to factor in delays by counting ballot stragglers, up to 10 days late in Ohio, as long as they’re postmarked by Election Day. Alas, the audit finds that “ballots are not always being postmarked as required.” Other hangups abound: A Michigan voting envelope was printed without an address for the correct elections office, which “caused the ballot to be returned to the voter.” Ballots can also be rejected by local workers, who eyeball a voter’s signature to see if it matches the version on file.

In this year’s primaries, according to a tally by NPR, 558,032 absentee votes were tossed out. Al Gore won the nationwide popular vote in 2000 by 543,895. The discarded ballots this spring included 23,196 in Wisconsin, a state Mr. Trump won last time by 22,748. Some states give voters a week, or 14 days in Illinois, to “cure” bad signatures. Yet a study of Florida in 2018 found that mail-vote rejection rates were twice as high for black as for white voters.

The finagling over late ballots and messy signatures might stall the reporting of credible results. About a dozen states, including Michigan, Wisconsin and Pennsylvania, don’t begin processing absentee votes until Election Day, per the National Conference of State Legislatures. In the absence of a partisan skew, this might not matter. But a recent Journal poll says that 66% of Trump supporters intend to vote in person, compared with 26% of Biden backers.


On election night, the electoral map might suggest a solid lead for Mr. Trump that is eroded as mail ballots are canvassed. What if Mr. Trump reprises his tweet from six days after Florida’s 2018 elections? “An honest vote count is no longer possible—ballots massively infected. Must go with Election Night!” Remember Hillary Clinton’s advice this summer: “Joe Biden should not concede under any circumstances, because I think this is going to drag out.”

The fight would probably drag out in the courts. Say it’s mid-November, and absentee ballots are being counted in a key state. Although Mr. Trump retains a modest lead, mail votes are breaking 3 to 1 for Mr. Biden. Perhaps the law in this jurisdiction requires ballots to arrive by Election Day, so there’s a pile to the side of thousands of late deliveries. Some are missing postmarks, and it’s not clear when they were mailed. Thousands more have been discarded for suspect signatures, but the rejection rates are higher in urban areas.

The best way to prevent this democratic debacle is to act before things get that far. If states tighten ballot deadlines now and prepare to process mail votes before Election Day, it would cut the risk of an outcome that causes half the country to claim it’s illegitimate. With each lawsuit that puts the count into the hands of judges, this nightmare gets more likely.

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2020-09-07 18:44:00

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