The Corner

Elections

Why Absentee Ballots Arriving after Election Day Represent a Vote-Counting Problem

An election official in Denver collects mail-in ballots after they have completed a process that verifies each voter’s signature on the outside of the envelope with the one on file at the Denver Election Division for the upcoming election in Colorado, October 22, 2020. (Kevin Mohatt/Reuters)

Why shouldn’t states allow ballots postmarked before or on Election Day to be counted if they arrive after Election Day?

A GOP consultant made an illuminating argument to me this week. When the polls close on Election Night, we want election workers to know precisely how many legitimate ballots exist in a voting “universe.” They don’t need to immediately know who won, but they need to know there are, say, 12,345 votes that have been legitimately cast in their jurisdiction. This makes it much easier to catch accidental over-counts or under-counts. If, after counting all the votes (and any ballots where some choices were left blank), if the sum comes up to 12,352, they know a few ballots were counted twice. If the sum comes up to 12,335, they know ten ballots didn’t get counted.

If a state accepts absentee ballots that arrive later in the week, vote-counters don’t know what their total “voting universe” is, and they’re forced to check their work against a moving target. There is a vote total for the count on Tuesday night or Wednesday morning . . . and then a presumably slightly bigger vote total for Wednesday night . . . and then another higher one Thursday night . . .  and then, depending upon how late a state accepts absentee ballots, yet another total for Friday night. This doesn’t make an accurate count impossible, but it makes it more difficult.

Earlier this week, in the case regarding Wisconsin’s deadline, Justice Neil Gorsuch wrote, “Elections must end sometime, a single deadline supplies clear notice, and requiring ballots be in by election day puts all voters on the same footing.” He cited precedent in the 1992 case, Burdick v. Takushi: “Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections,” and states have always required voters “to act in a timely fashion if they wish to express their views in the voting booth.” (One wonders why Gorsuch didn’t stick to this view in the case involving North Carolina.)

Voting is a right, but exercising that right requires some responsibility on the part of voters. Voters need to register. Voters need to meet the legal definition of residency where they cast their ballot, and voters must cast only one ballot. (Having homes in more than one state doesn’t mean you get to vote twice.) And voters must act before the deadline.

In most jurisdictions, ballots are at least required to be postmarked by Election Day or before. But the Pennsylvania supreme court ordered that a ballot with no postmark or an illegible postmark must be regarded as timely if it is received up to three days after Election Day. Whether or not someone thinks election fraud on a scale to tip a close election is probable, this set of rules makes this kind of fraud possible, as some malefactor can determine how many ballots are needed on Election Night to close the gap, spend Wednesday collecting the required number of absentee ballots, and then deliver them within the three-day window and add them to the total. It makes little sense to have one deadline for one set of voters and another deadline for another set of voters.

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