Among the many factors that will determine the timetable for learning the 2020 election results, two that are a source of controversy and litigation in various states involve how soon mailed ballots can be processed and how late they can be received.
Given an upsurge in voting by mail across the country in this pandemic year, you’d think states would want to begin dealing with mail-in ballots — which have to be opened and authenticated (typically by matching signatures in voter-registration filings) before they can be counted — as soon as possible. But thanks to ancient fears about vote counts being leaked before Election Day and thus affecting voting behavior, some states prohibit mailed-ballot processing prior to Election Day, as Pete Williams reports:
[S]tates with long experience in handling large volumes of mailed ballots begin to verify them about 20 days before Election Day. In 35 states, the process starts early, and in 12 of those states, election officials can begin checking the validity of mailed ballots as soon as they’re received …
But in 11 other states, including the presidential battlegrounds of Michigan and Pennsylvania, election officials can’t even start the process until Election Day. And in three other states, they can’t begin until the polls close.
This is one very good reason that scenarios of postelection chaos often focus on Michigan and Pennsylvania. If, as is entirely possible, over half of all ballots are cast by mail and they can’t even be opened until Election Day, the count will be very slow, and there could be a very large gap between Election Day and the reporting of mailed-ballot results thanks to Republican preferences for these rules. Efforts in legislatures and in court to relax restrictions on mailed-ballot processing could make a big difference in how the deal goes down.
An equally big controversy that has been highlighted by fears of slow deliveries from the U.S. Postal Service involves the deadline for sending ballots in by mail: Must they be received by Election Day, or can they be counted if they are postmarked on or immediately before Election Day?
At present, according to the National Conference of State Legislatures, five states allow ballots postmarked the day before Election Day to be counted, while 12 more simply require them to be postmarked by Election Day. Several have back-end requirements on when ballots must actually be received (e.g., in California, they must arrive no later than three days after Election Day), and a federal district-court judge has at least temporarily added Georgia to this list, as the Atlanta Journal-Constitution reports:
A federal judge on Monday extended the deadline for absentee ballots to be returned in Georgia, ruling that they must be counted if postmarked by Election Day and delivered up to three days afterward.
U.S. District Judge Eleanor Ross wrote that voters must be protected during the coronavirus pandemic, when record numbers of Georgians are expected to cast absentee ballots.
The judge’s decision is one of many being issued around the country following a wave of litigation, much of it launched by Democratic and pro-Biden groups trying to relax traditional rules (and opposed by Republican and pro-Trump groups). But it will be appealed.
At present, Nevada is the only expected battleground state that will allow mailed ballots not received by Election Day to be counted. Arizona, Florida, Michigan, Minnesota, Pennsylvania, and Wisconsin all have hard deadlines for receipt by November 3. Nothing’s for sure until the final gavel falls.