States Need to Process Mail-in Ballots Early

T here’s the morning after, and then there’s the morning after the morning after.

The presidential election was Tuesday, and as of mid-morning Thursday we did not know the result. Pennsylvania — long thought to be a potential tipping point in the Electoral College — still had more than 10 percent of its vote to count. This wasn’t a Florida-in-2000 kind of situation where the vote was close and disputed and a bunch of recounts were underway; Pennsylvania officials just hadn’t tallied all the ballots they’d known since the get-go they’d need to count.

The backstory of why this happened is instructive, a microcosm of the problems plaguing late-counting states in general. American federalism is a beautiful thing in many, many ways, but state and local control of election rules has predictable downsides. When state officials debate those rules — whether they’re drawing congressional districts or figuring out a policy for mail-in voting — they’re not really debating the best way to run an election; they’re figuring out ways to tilt elections in their favor. In Pennsylvania, the Republican-controlled legislature, the Democratic governor, and the Democratic supreme court all made decisions that delayed vote-counting but advantaged their respective sides of the aisle.

We’ve known for months that the Pennsylvania count would be delayed. Why? Because state law does not allow election officials to start processing mail-in ballots until Election Day. In many other states, these votes are processed immediately upon receipt or at least a few days in advance. But in Pennsylvania, every mailed-in ballot needs to be left untouched until in-person ballots, which are far easier to count because they don’t need to be unsealed and inspected first, start being cast on Election Day.

Though Republicans control the Pennsylvania legislature while a Democrat is governor, you still might think they could work together to avoid such a mess. But you’d be wrong. A defining feature of this election is that mail ballots lean Democratic while in-person voting leans Republican, giving a partisan valence to all of these decisions: Republicans want mail-in voting limited, while Democrats want a free-for-all. On top of that, there have been hysterical allegations that Republican legislators in Pennsylvania wanted to delay the result of the public’s vote and then hand the state’s electors to Trump themselves.

Whatever the motivations of everyone involved, we didn’t end up with the Republicans offering to let the work begin early and the Democratic governor agreeing. Instead, the Republicans offered to pair three days of advance processing with the elimination of drop boxes for mail-in ballots, an earlier deadline to apply for ballots, and various other changes that they said would improve election security, which the Democratic governor rejected. The two sides never worked out their differences, and so the ballots weren’t handled until Election Day.

That’s stupid, but at least it’s the product of a normal lawmaking process. As Andy McCarthy has explained, what the Pennsylvania supreme court did was far worse: The majority — the Democratic majority, as judges in Pennsylvania are elected, not appointed — simply rewrote the law on ballots received after Election Day. The law was that these votes wouldn’t be counted. The court decided that they will be counted, so long as they are received within three days of and postmarked by Election Day. Late ballots with missing or illegible postmarks will be counted too. This move is not merely lawless but arguably barred by the federal Constitution, which gives “the Legislature” of each state the power to set election rules, setting up a potential Supreme Court case if the state is incredibly close.

We see this kind of thing over and over again in federal elections: State lawmakers use their power at one time at the state level of government to improve their political chances at other times at the federal level. Most significantly, they gerrymander federal congressional districts whenever they get the chance.

States are probably not going to fix this, because the political incentives for letting it continue are just too strong. If it wanted to, however, Congress could impose some consistency across the country’s federal elections — though of course Congress itself has political motivations as well, and federal solutions should always be a last resort.

The Constitution does not actually grant states full power to handle federal elections. For presidential elections, Congress sets the timetable. And for congressional elections, Congress has quite broad authority: While state legislatures by default set the “Times, Places and Manner of holding Elections for Senators and Representatives,” “Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”

As the law professor Ronald J. Krotoszynski Jr. laid out in The Atlantic earlier this year, congressional regulations of House and Senate elections can create a smoother process for presidential elections as well, for the simple reason that these elections are held together. States could depart from federal rules in presidential and non-federal elections, but “precedent at least suggests that no state will do this: Under the Motor Voter Act, for example, states have not adopted dual-registration systems; the ‘motor voter’ registration is good for all elections within the jurisdiction.”

Krotoszynski argued for a federal mandate that all states allow mail-in voting this year. I think a much narrower rule could prevent another disaster like this one going forward: If a state chooses to allow mass-scale mail voting, it should have to let officials start processing votes at least, say, a week in advance, and it should be forbidden to count ballots not received by Election Day. Even if the results aren’t made technically official for a while, the nation as a whole has an interest in promptly knowing how federal elections turned out, and a surgical requirement like that could help. This year was an outlier in terms of mail voting, but the practice is growing all the time, and even before COVID-19 hit, experts were pointing out the difficulties of tallying mail ballots starting on Election Day.

America is amazing in large part thanks to its messy and chaotic federalism, but our inability to count votes is kind of embarrassing. We must do better.