The last thing anyone wanted in 2020 was a complicated post-presidential election debacle. Unfortunately, a combination of factors created a perfect storm for election chaos this year, and we are suffering in its aftermath.
First, states should require all absentee ballots be due by the close of polls on Election Day. (Not including military and overseas ballots, which are usually a small number.) This has been the cause of one of the biggest battles of the past few weeks, and litigation is likely to continue.
It is understandable to want to count every mail-in ballot by Election Day, but it is just not practical. “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,” stated Supreme Court Justice Neil Gorsuch in his concurring opinion to reject a trial court ruling that would have extended Wisconsin’s deadline to receive absentee ballots.
Courts apply a balancing test to weigh the burden that a state places on electoral participation against a state’s need to run a fair and efficient election. The Supreme Court has determined that if a burden to voting is not severe, the state may establish the necessary structure to run a smooth election.
Clear deadlines for returning ballots are not a severe burden on voters, and they are necessary to run a competent election.
As we have seen, the problem with allowing mail-in ballots to come in after Election Day is that it becomes very difficult to determine whether they were mailed before or after Election Day.
Many mail-in ballots never get postmarked by the U.S. Postal Service—so you either have to throw away ballots without a postmark—which seems unfair, because the voter has no way to control whether USPS postmarks their ballot—or you have to take ballots without a postmark.
That is extremely dangerous, because even if no one puts their ballot in the mail after the election is over, just the fact that they could do so undermines confidence in the election.
If voters know that their ballot must arrive by Election Day, they can either mail it early, place it in an official drop box, or drop it off at a polling location.
Second, under Article II, Section 1 of the Constitution, only state legislatures have the authority to supervise presidential elections: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” Thus, the making and modifying of election laws should be left to state legislatures. Governors, election boards, and state or federal courts should not be making last-minute changes to state election statutes.
This year in many states, partisans have taken advantage of the uncertainty created by the COVID-19 pandemic to bypass state legislatures and make last-minute changes to state election rules. Governors, secretaries of state, elections boards, and state supreme courts have all attempted to change the rules of the election, in clear contradiction of the Constitution.
Perhaps there are some emergency situations where it would be appropriate for courts or a governor to step in to slightly modify election rules—a power blackout, a hurricane, etc.—but a slow burning pandemic, during which the state legislatures had months of notice and plenty of time to meet in order to modify election laws (which many of them did), is not one of those situations.
These last-minute changes to election rules by non-authorized actors have sown unnecessary confusion among voters and election administrators and spawned countless preventable lawsuits.
Finally, and perhaps most importantly, outdated voter rolls combined with mailing every registered voter a ballot is a recipe for disaster. Nevada has illustrated perfectly in 2020 why many are so adamant about cleaning up voter rolls. It is not to disenfranchise voters and remove eligible voters from the rolls. It is absolutely to ensure that only eligible voters can cast a ballot.
Nevada’s state legislature decided to send every registered voter a mail ballot—so did several other states. But Nevada is a battleground state, and its voter rolls are notoriously outdated. As a result, you have many reports of deceased voters and voters who have moved out of state being sent mail ballots. Some voters received multiple ballots. Renters found previous tenants’ ballots in their mailboxes. Some of these ballots were allegedly filled out and returned.
This made Nevada’s process of verifying mail ballots much more difficult, and it greatly undermined the nation’s confidence in the process. We do not yet know how many fraudulent ballots were cast, but even if the number is small, the damage to the country’s faith in the election system is extensive.
The United States has greatly improved its election system since the fiasco that was the 2000 presidential election. We do not have hanging chads anymore, voting systems have been modernized, and state laws have been updated. Yet it is clearly nowhere near a perfect system.
All elections have problems, but it is only when the margins in important elections are razor-thin that the flaws in the system are so starkly exposed. That is why every election administrator’s prayer is, “Please, let it be a landslide!”
States should use the 2020 election as a lesson and work to make some simple, common-sense changes to avoid future post-election meltdowns in close races.