Voting By Mail: When Will November’s Election Results Be Settled?

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

One issue I’ve been meaning to write about is the U.S. constitutional and statutory issues raised by voting by mail.

Yet every time I sit down to compose a post, it is superseded by a more pressing topic.

Of course, astute readers realize the legitimacy of the upcoming elections is one issue that will be affected by the struggle to seat someone asap to fill Ruth Bader Ginsburg’s shoes

At this point, I want to raise a basic question: when will results of November’s elections be settled?

At the moment, the make-up of the court is 4-4, (although Republicans have a slim majority of appointees).  We all remember how in 2000 the Supreme Court shamefully divided on partisan lines and in deciding Bush v. Gore, and threw the election to the Republicans. I challenge anyone to read that opinion and not conclude it is nothing more than a partisan excercise.

Especially to anyone who remembers the 2000 election, it has long been clear that the U.S. has long had an electoral system that would shame any self-respecting banana republic.

Yet we purport to tell other countries how they should conduct their elections when we have   done precious little to clean up ours,

Alas, once again the in-depth analysis I have long planned of the voting by mail issue has once again been trumped by some issues raised by Justice Ginsburg’s death.

I leave aside the broader state and federal legal issues that will undoubtedly be raised this year, in order to focus on a narrower set of issues considered  by the Wall Street Journal, Declaring 2020’s Winner Could Well Hinge on How Quickly States Count Mail Ballots.

Counting Backlog

Here, we should start by recognizing that states fall into three groups: those that allow counting before election day; those that can count before polls close on election day; and those that count after polls close on election day.

How soon Americans know the outcome of the presidential election could hinge on a few states—and how fast they count mail ballots.

Many states allow election workers to start processing mail ballots before Election Day, and so count them relatively swiftly. Some states—including potentially decisive swing states like Wisconsin, Michigan and Pennsylvania—don’t open envelopes containing mail ballots until Election Day.

With an unprecedented number of voters expected to vote by mail amid the coronavirus pandemic, counting ballots may take days or longer in some states, possibly delaying a tally.

If you think that the battle over Ginsburg’s replacement is fraught, just imagine how these practical concerns will play out? And this before we get to issues that will undoubtedly arise: anyone remember hanging chads? And the legitimacy of all the ballots that are not hand-marked, and/or hand-counted in public?

Per the WSJ:

“In states like Wisconsin, Michigan, Pennsylvania, where they don’t allow clerks to process ballots in advance, they’ve got to do all that work on Election Day, and so they’re going to be backlogged,” said Amber McReynolds, head of the National Vote at Home Institute, which promotes voting by mail.

Current rules could be changed through legislation or litigation. A judge in Michigan and the Pennsylvania Supreme Court this week separately ordered deadline extensions for accepting mailed ballots, potentially pushing back the time it will take those states to determine results.

So far, election officials seem to be relying on increasing personnel as well as some resort to  our old friend, the technofix fairy.  And like many thinking people, According to the WSJ:

Local election officials in some states said they are ramping up by buying faster ballot-counting scanners and adding more workers. Other variables that could affect the timing include differing deadlines for accepting ballots: Some states take them after Election Day as long as they are postmarked by that day.

They counsel patience. But in the skeptical climate the currently surrounds American politics, slow results – especially when the numbers don’t appear to be breaking the way one expects or would like- is a recipe for even more political unrest.

The WSJ concurs:

Election officials have said voters should prepare to be patient and said that needing extra time for counting is to be expected and helps ensure accuracy. At the same time, the possibility of slow results has worried some officials and election scholars that any delay could provide an opening for rumors and misinformation to spread.

President Trump has repeatedly claimed that expanding mail-in voting will invite fraud or inaccurate results. Some Democrats accuse him of trying to undermine public confidence in voting. Academic studies haven’t found evidence of widespread fraud linked to mail ballots, though isolated cases have occurred.

“There’s a lot of suspicion among hard-core Trump supporters, and hard-core Trump opponents, about people trying to manipulate the voting system,” said Barry Burden, a professor of political science at the University of Wisconsin-Madison. “It’s just very tempting for people to believe that something nefarious has happened when the results don’t seem to be going in the way they expected.”

Practical issues

The WSJ also examines at length two practical issues that will slow the processing of mail ballots by election officials: opening votes cast by mail, and verifying voter signatures. I won’t discuss those here, but instead refer interested readers to the WSJ link.

I remind readers that it took about a month to resolve the issues raised in Florida in 2000 and that was a ‘normal ‘year when most ballots were cast in person,  not a pandemic year when there will be extensive voting-by-mail, according to procedures never tested at this scale.

And one thing we know, from past experience: the U.S. electoral system does not cope well with novel, untried and tested systems.

So, in answer to my question: when will we know the 2020 election results?

I confess, I haven’t a clue.

Do you?

What I can say is we will have an answer on who is deemed to have actually won in 2020 much later then will satisfy either side’s partisans, or indeed, anyone who has devoted amy thought at all to how rickety and subject to manipulation the U,S. electoral system actually is.

Bring on the observers!

Its’s going to be a long and deeply contested electoral cycle.

 

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30 comments

  1. Jim Hannan

    The beauty of mail in ballots is the paper trail. The ballots can be stored away and hand counts can be performed for audit purposes. So, much safer than the electronic voting machines.
    Signature verification is not a big issue in the five states that have gone to all mail elections. And there is typically voter notification if there is a question about signature. Voters are given a few days to “cure” their ballot.

    Reply
  2. Brian (another one they call)

    In Oregon, we have been voting by mail for many years. We get the ballot delivered to our home about 6-8 weeks before the election and can use the mail or ballot drop boxes in our county as soon as we have completed our vote. There wasn’t any major controversy about the matter that I can recall, and mail in/drop off voting was approved. I don’t recall any controversy since either.
    The brouhaha about mail voting seems a tornado in a teacup as a result of our history.
    But of course there are states where the ballots and access to them are scrutinized by highly partisan opponents that want the right to disenfranchise those potential votes they don’t like. Ballot box stuffing and voting repeatedly are/were things of the past that don’t work with mail in ballots that have to be signed by the voter and that signature is checked.
    It really isn’t complicated unless you want to alter the tally, which is of course the rest of the story.

    Reply
  3. tegnost

    Neither side will accept the results.
    I use this handy chart from UC Davis for bean soaking/cooking times

    https://shcs.ucdavis.edu/sites/default/files/documents/BeansCookingChart.pdf

    I tend to soak 24 hrs with several rinses (rinse the beans in a colander 7 or so times til the color is gone from the water every 8 hours)
    vigorously boil the beans in an uncovered pot for the allotted time and the water should boil away, stop in the sweet spot where you can see the beans slightly above the water level, and before they stick to the bottom. Add cumin seeds, coriander seeds, rosemary, bay leaves. Avoid adding things like onion, garlic and peppers until you’re preparing a dish. Freeze what you aren’t going to use in a day or two. If you have digestion issues start with smaller portions and work your way to larger ones.
    Hmmm, I wonder why I put this here…
    Stock up now and avoid the rush.
    Adding, keep grains, rice and beans in glass jars to keep the mealy bugs at bay, you don’t need any lesser weevils

    Reply
      1. Eclair

        I believed this for years, then, having read advice to the contrary, I have been adding salt (1/2 tsp per cup of dried beans) to all kinds of beans. No problems with hardness. Unless they are old old beans.

        I have also begun adding just a pinch of sodium bicarbonate just before cooking.

        And, yes, epazote is a wonderful addition. Hard to find, unless you can grow your own. Not in Western NY, alas.

        Reply
  4. curlydan

    I would like to see most (all?) states require that mail in ballots be postmarked a week _before_ the election, so that come election day, at least 99% of the ballots likely are in the hands of the election board.

    Reply
  5. edmondo

    The Trumpkins will never accept a loss in November because it proves that Trump is “a loser” – and that’s the worst thing you accuse them of being (because it’s true). So Donald will – after the election – move down to Mara Largo and tweet till his fingers bleed about how he was screwed out of a job he is too inept to handle and never really wanted. Think Charles Foster Kane without the sled.

    The Dems on the other hand, are totally irrational. If they lose to Trump again, I suspect they could go full-on crazy. There would be McCarthy hearings in Congress about Russian “influence” that would make the recent crazy looks like a joint Russian-USA exercise. The Dems will refuse to believe that they lost (just like in 2016).

    The Democrats have made the election about the “evil of Donald Trump”. they burn with a religious ferocity that they are right and on God’s side. I worry more about their irrational actions than the guys with the guns.

    Reply
      1. Daryl

        These don’t seem like actual suggestions of arson, just people making fools of themselves on twitter.

        That being said, liberal suggestions of violence are always bewildering to me… the other side has all the guns, and is clearly a lot better at it.

        Reply
    1. Anonymous

      they burn with a religious ferocity that they are right and on God’s side.

      Question is: which God? (I suspect one of their own imagination.)

      Reply
  6. Brooklin Bridge

    I think Lambert already made this point in a Water Cooler, but to repeat in my own slant, both of our political sides have evolved to a level of corruption whereby they (knowingly or not) put higher value on their ability to game the system by software (among other shenanigans) than they do about actually winning an election. Neither side will entertain hand counted ballots as a solution to getting an accurate vote count any more than they would consider Democratic Socialism as a more equitable way to distribute public resources. Indeed, they are so far down the rabbit hole of cheating being automatic as breathing, that there is little or no sense of self consciousness to it. Hand counted ballots are unthinkable as well as unmentionable in any publicly acceptable sphere; and that’s that.

    So if both sides breathe cheat, who wins? A recent post (Jerri-Lynn’s “A Civil War…,”), made the point that in 2000, the so called winner was also, and not coincidentally, the choice of the powers that be whereas this time around, in the epic fight to, as always, end all fights, Biden is the pick of the movers and shakers. So there is a good argument that Biden wins if he is still standing or can at least be made to appear as such.

    Still, I’m guessing Trump will not go down without a fight – it will start with a declaration of victory immediately on the eve of voting day – he is still President, after all, and still has the bully twitter pulpit and he has enough support and of an intensity to create quite a ruckus as the mail in ballots trickle in.

    Reply
  7. Thor's Hammer

    Add one more item to your list of things that the USA no longer seems to do with even a minimal level of competence:

    1-Manufacture anything, whether it may be 1900’s technology like a steel bar or the latest whiz-ban folding screen phone.
    2-Build high speed trains, even to the level of Vietnam—one of the countries we tried to bomb back into the Stone Age.
    3-Build airliners designed by engineers instead of criminal corporate bean counters.
    4-Maintain public order in our cities.
    5-House, feed, and rehabilitate our homeless.
    6-Provide medical care to an extent normal in all civilized countries.
    7-Respond to the threat posed by a viral pandemic.

    Now add:

    8-Inability to organize an electoral circus that more that half the population recognize as legitimate. (actually most don’t even bother to vote) The spectacle of hanging chads, denial of voting through gerrymandering, elections decided by DieBold voting machine hacking, fraudulent mail-in voting, polling place capacity restriction by district demographic profiling—- Combined with the radically undemocratic Electoral College results in a system of elections that is the laughing stock of the rest of the world.

    Ironic that Venezuela, the country we are attempting to overthrow by military blockades, mass starvation, coups, assassination, and theft of their internationally deposited gold reserves was recognized as having the fairest electoral system in the world in in 1992 when they re-elected Chavez.. It’s electronic fingerprint voting system backed up by a complete paper trail is the model for the entire rest of the world.

    https://www.globalresearch.ca/former-us-president-carter-venezuelan-electoral-system-best-in-the-world/5305779

    Americans have the choice of remaining blinded by their ideology or their perceived dislike of the current Venezuelan government, but if they truly wanted to have a functioning Democracy they should first study the technical characteristics of the Venezuelan voting system.

    Reply
    1. Upwithfiat

      Agree with everything you said except:

      ”and rehabilitate our homeless.” as if it’s their fault that there’s only 90 or so bones for every 100 dogs.

      And btw, I suspect homelessness is a severe test of anyone’s “sanity”.

      Reply
      1. Felix_47

        There are 75000 homeless in NYC. The City (medical care is medicaid) spends 3.4 billion per year. That works out to 4000 per month per person. A mother of 4, undocumented from Honduras if we just rationalized the benefits should be getting 20,000 per month.

        Reply
  8. tc>

    I was going to say December 14th, since that’s the day the Electors must meet. But it occurred to me that if the Congress decides that the incumbent did things to make the vote illegitimate, the Congress could decide to discard some State results, or accept alternative State results, and count them on January 6th with a result that you or I might find surprising.

    There is a precedent for creative counting in Presidential election results: The Compromise of 1877. Perhaps the Dems will decide to just outright steal the election, in exchange for the departing President getting both Federal and New York State pardons.

    Reply
    1. ambrit

      Part of the Compromise of 1877 was the removal of the last Federal Occupation troops from the South. Then, it was the Republicans who did the “stealing” of an election.
      So, what armed groups could the Democrat Party “remove” as part of a ‘deal?’ Rather, the Republican Administration has the “legitimate” control of the Practitioners of Coercive Violence (h/t S. M. Stirling.)
      If I remember correctly, the Department of Justice is an arm of the Executive Branch. When push comes to shove, Trump can legally and legitimately bend them to his will.
      One often overlooked aspect of the old Third Reich apparat was it’s decentralized and internally competitive nature. “Official” Governmental bureaus competed with the Party bureaus for funds and operational control. The SS was independent of the Wehrmacht, yet both fielded combat divisions. America has fallen into a similar dynamic. Parts of the Intelligence Ecosystem oppose Trump while others serve the office of President, if not explicitly the person in that position.

      Reply
  9. allan

    3 U.S. Code § 2. Failure to make choice on prescribed day

    Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
    (June 25, 1948, ch. 644, 62 Stat. 672.)

    Oddly, or not, the legislatures in AZ, MI, PA, TX and WI are gerrymandered GOP dictatorships.

    Reply
    1. upstater

      IIRC, Arizona implemented a nonpartisan redistricting commission maybe 20 years ago by voter initiative when I lived there. Perhaps Slim can weigh in?

      Reply
      1. allan

        I don’t know about a redistricting commission, but Arizona is one of a group of states that use nested districts, where (in AZ’s case) each upper chamber district is made up of exactly two lower chamber districts.
        Originally introduced as a reform to prevent gerrymandering, nested districting has been shown to
        be (theoretically) highly susceptible to manipulation: https://arxiv.org/abs/2005.12732

        Reply
  10. Tom Doak

    Forget Bush v Gore. Remember the Iowa primary, where the app failed and the “winner” was disputed and the result hung for days and never fully resolved?

    That could happen in multiple states on November 2nd. But of course we can trust the MSM to project the winner so that everyone will accept the results. /s

    Reply
  11. diptherio

    “…some issues raised by Justin Ginsburg’s death.” Say what you will about Justin, but I think his sister Ruth’s death is an even bigger issue [ducks].

    Reply
  12. juliania

    FDR’s first fireside chat involved explaining to the public the operation of the Bank Holiday. The purpose being to fix the system

    I suggest a fireside chat (maybe by the Chief Justice?) explaining the operation of the first Election Holiday. The purpose being to fix the system. Or, maybe Lambert should do it, since he has good ideas about how it ought to be fixed.

    Reply
  13. Eclair

    Whatever the outcome of the coming election, the ground has been well prepared over the past year and, especially in the last few months, for the US electorate to have lost faith in our voting system. All the articles and talk about states having to institute voting by mail without doing beta tests, slowing down the USPS so ballots won’t be delivered until Christmas, pictures of trucks dumping ballots in vacant lots, no verification systems, etc.
    This is not rocket science. We lived in Colorado for ten years and voted by mail, dropping off our ballots in the town’s official drop-off box. Same thing in Seattle. But now, the entire country, right and left, is in a twit, prepared to disbelieve any outcome in which their preferred candidate might lose. I am prepared to think that it’s all a carefully constructed campaign, sowing ‘disinformation,’ fomenting distrust in the electoral foundations of our system of government, preparing the way for much anger and gnashing of teeth at the best, or nasty civil strife and unrest at the worst.

    Follow the money.

    Reply

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