America is less than a month away from election day, but high-stakes fights over access to the ballot have been moving through US courts for months. Democrats and civil rights groups have sought to ease restrictions on voting by mail amid the Covid-19 pandemic, while Republicans and the Trump campaign have sought to keep them in place.
In recent weeks, courts in Pennsylvania, Michigan and Wisconsin, all key battleground states, have issued hugely consequential rulings that could decide whether tens of thousands more votes are counted in November. Those three states will probably help decide who wins the election and Trump won each by less than one percentage point in 2016.
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Voters in Pennsylvania, Michigan and Wisconsin are usually required to return their ballots by election day in order to have them counted, regardless of when they put them in the mail. But the three recent court rulings give voters in all three states more time, saying they will count as long as the ballots are postmarked by election day and arrive in the days after.
It’s a small change that could make a huge difference, especially in a year when Americans are worried about delays in mail delivery. In Wisconsin’s April election, more than 79,000 ballots arrived after election day and were only counted because of a court order (Trump won the state by just under 23,000 votes in 2016). In Michigan’s August primary, 6,405 ballots went uncounted because they missed the deadline (Trump won the state by 10,000 votes in 2016).
“As a general rule, the extension of the deadline provides some insurance against, say, mishaps with the postal service or administrative errors or voter mistakes that then lead to ballots being received after election day,” said Nathaniel Persily, a professor at Stanford University who closely studies elections.
Studies have shown that first-time, young and minority voters are all more likely to have their ballots rejected than other voters. In Florida’s March primary, for example, minority voters were about twice as likely to have their ballots rejected than white voters, according to research by the Stanford-MIT Healthy Elections Project. In 2016, voters who cast ballots in person were less likely to have their votes rejected than those who voted by mail; because more Democrats are expected to vote by mail this year, there is concern that they will be more likely to have their votes rejected than Republicans.
Republicans are moving aggressively to overturn the rulings and preserve the cutoffs. In Pennsylvania, Republicans are asking the US supreme court to halt a ruling from the state supreme court ordering ballots counted if they are postmarked by election day and arrive by 6 November. The state court argued the extension was necessary after a warning from USPS that some voters could be disenfranchised because of the state’s deadlines, but Republicans argue the decision usurps the legislature’s ability to set election rules and will lead to chaos.
The case, the first to reach the supreme court after the death of Justice Ruth Bader Ginsburg, is one of the most consequential ahead of the 2020 election.
Similar fights are under way in Wisconsin and Michigan. In Wisconsin, Judge William Conley of the US district court this month ordered the state to count ballots postmarked by election day as long as they are received by 9 November. A federal appeals court upheld the ruling and it is not yet clear if Republicans will seek review from the US supreme court.
Michigan Republicans are fighting in both federal and state court to overturn a ruling from state court earlier this month ordering ballots to be counted as long as they are postmarked by election day and arrive within 14 days after.
Requiring election officials to accept ballots postmarked by election day also means it may be harder to call a winner on election night as states continue to count late-arriving ballots. Donald Trump is suggesting that America should know the election results on election night and there are concerns his campaign will attempt to declare victory before all of the late-arriving ballots are counted.
“In some states, because of the Election Day postmark deadline and because the canvassing of mail ballots cannot start until Election Day, there’s a possibility we’ll see a sizeable Blue Shift – that is, Election Day tallies growing for Biden as valid mail-in ballots are received and counted by local election boards,” Daniel Smith, a political science professor at the University of Florida, wrote in an email.
Pennsylvania and Wisconsin both prohibit election officials from beginning to process mail-in votes until election day; Republicans in Michigan recently agreed to allow clerks to begin processing the day before.
Despite the rulings extending ballot receipt deadlines, there are worries that eligible ballots could be rejected over small technicalities, which are expected to come under a microscope in post-election litigation. Typically just a small sliver of mail-in ballots are rejected – somewhere around 1% in the 2016 general election – but that could rise this year as more people are expected to vote by mail and could make a difference in close states. Both the Biden and Trump campaigns are preparing for a legal brawl after the election over counting ballots and the Trump campaign has said it will aggressively challenge ballots that lack signatures or postmarks or have other technical deficiencies, according to the Washington Post.
Last month, the Pennsylvania supreme court instructed election officials not to count a ballot if a voter forgets to put it into a privacy sleeve. This ruling on so-called “naked ballots” could cause “electoral chaos”, Lisa Deeley, a top election official in Philadelphia, wrote in a letter to state lawmakers last month, warning that more than 100,000 votes could be rejected.
Noting the 2016 election in Pennsylvania was decided by about 44,000 votes, Deeley asked lawmakers to allow officials to count these naked ballots, writing that “the secrecy envelope exists now only as a means to disenfranchise well-intentioned Pennsylvania voters.”
“Particularly when you have first-time mail voters, there’s going to be several people who don’t understand what the purpose is of a secrecy sleeve. There’s going to be thousands of people who do not sign the outside of the envelope because they think ‘my ballot should be private and I shouldn’t have to add my name’,” Persily said.
Voters can have their ballots rejected for other small reasons, including forgetting to sign the ballot or get a witness signature. In North Carolina, there are already concerns that ballots from Black voters are much more likely to get flagged for rejection because of a deficiency. Republicans in the state have objected to efforts to make it easier for voters to cure deficiencies on their ballots.
A worst-case scenario would be if appellate courts were to overturn rulings making it easier to vote this close to election day, Persily said. More than 3 million people have already cast their votes and tweaking the rules so close to the election would probably cause confusion.
“We are reaching the point where it is more important to know what the rules are than to have the best rules possible,” he said. “While there’s an inclination that we should celebrate these lower court victories that are friendly to voting rights, if they get reversed at some point in the next two weeks that’s the worst of all worlds.”
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