Plus, what if a candidate dies?
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Today’s read: 12 minutes.
How our votes will be counted. Plus, what if a candidate dies?
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- President Donald Trump began campaigning again yesterday after his doctors cleared him to leave the White House. Trump held a rally in Orlando, Florida, where he shared how “powerful” he felt after surviving COVID-19.
- Seeing his support amongst seniors lagging, President Donald Trump is targeting them with an eight-figure advertising campaign in battleground states. Meanwhile, Joe Biden is now targeting Black millennials in an advertising campaign of his own.
- Johnson and Johnson is pausing its Phase 3 vaccine trials after an “unexplained illness” in a patient. “Adverse events — illnesses, accidents, etc. — even those that are serious, are an expected part of any clinical study, especially large studies,” the company said.
- Joe Biden told reporters he’s “not a fan of court packing” yesterday, the most direct answer he’s given in recent weeks to repeated questions about his position on the idea of adding justices to the Supreme Court.
- California Republicans set up unauthorized ballot drop boxes that may violate state law, setting off an investigation by state officials who issued a cease-and-desist order on the drop boxes.
What D.C. is talking about.
Counting our votes. In the last few months, court challenges across the United States have popped up that could very well determine how and when your vote is counted.
For example, in Wisconsin and Pennsylvania, Democrats and Republicans are squabbling over the deadline for how long mail-in ballots can be counted. A Wisconsin judge initially ruled that any ballots that arrived by November 9th — six days after election day — would be counted, so long as they were postmarked by November 3rd. Republican legislators challenged the ruling in the state Supreme Court and had it overturned. Now, Democrats are expected to challenge it all the way to the United States Supreme Court. The same Wisconsin judge upheld a requirement that absentee ballots have to have a witness signature.
Similar battles are happening all over the country in battleground states. Pennsylvania and Ohio are fighting legal battles about where voters can drop off their ballots. In Michigan, legislation is going through the courts that will determine whether voters can fix problems with their mail-in ballots if they are notified in time by election officials. In North Carolina, the deadline for receiving mailed ballots was extended by six days — then Republicans challenged it. The dispute is still being fought in court.
Perhaps no state on the map is as important and convoluted as Pennsylvania. For many pollsters, Pennsylvania is a tipping point state — one neither candidate is likely to win the election without. Democrats have notched some major legal victories there: they extended the deadline for when ballots could be received by three days and had more drop boxes installed. But Republicans are challenging both those rulings and have won some battles in the meantime, too: they limited the way people or groups could collect other ballots from voters for delivery (often called “ballot harvesting”) and they got the court to rule that any ballot submitted without a required privacy envelope — also known as a naked ballot — would be thrown out.
Because nearly every battleground state waits until election day to actually begin tabulating their ballots (another issue being fought in legislatures and courts), the results of a close election could take days or even weeks to materialize — especially if votes are still being accepted as much as six days after election day. Complicating matters is that The Department of Justice has said that potential voter fraud can be challenged before the election rather than having to wait until votes are counted.
Two fundamental arguments have emerged from this fracas. One, being made by the left, is that states should update their laws to accommodate what we know will be an incredible surge in mail-in voting. The other, being made by the right, is that states control how and when elections happen and should avoid changing those rules this close to an election, because doing so will cause nothing but chaos.
What the left is saying.
Generally speaking, the left views any extensions or expansions of voting access positively. They are undeterred by concerns over changing election rules because they believe the more votes that are counted, the better.
In The Guardian, rulings in Pennsylvania, Michigan and Wisconsin that extended the deadline for counting ballots were all celebrated. “It’s a small change that could make a huge difference, especially in a year when Americans are worried about delays in mail delivery,” Sam Levine wrote. “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).”
In speaking with The Guardian, Stanford professor Nathaniel Persily said “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.”
In Slate, Richard Hasen said the “boldest and perhaps most dangerous” argument Republicans are advancing is that when a state Supreme Court applies its state constitution’s rules to protect a right to vote, and does so by loosening current voting rules, that they are somehow taking the Constitutional power away from the state legislatures to set the manner of conducting an election.
“It’s a dangerous idea that a state court applying a state constitution is taking away legislative power, particularly in states like Pennsylvania where the state legislature has itself approved the constitutional provisions being applied,” Hasen wrote.
The USA Today editorial board argued that states and news organizations need to make it clear the election won’t be over on election night. The board also bemoaned the fact that Michigan, Pennsylvania and Wisconsin (and seven other states) have tied their own hands with restrictive laws that prevent them from counting or even processing ballots until election day.
“Only one state, South Carolina, has changed its laws to allow a faster count, but it applies only to the 2020 election,” the board wrote. “The legislatures of Michigan and Pennsylvania are in session and could easily change their laws… Pennsylvania is in particular need of some advanced time to process ballots. Three factors — its experience in the primaries; the departure of election officials in a number of counties, according to NBC News; and a complex mail balloting process that requires two envelopes — point to a potentially arduous vote-counting process.”
What the right is saying.
Most Republicans have rallied around the idea that changing the laws this close to an election would only sow more chaos. In fact, some are explicitly calling on the Supreme Court to settle the issue now, that way there are fewer battles to settle come election day.
“The Supreme Court is considering an appeal on ballot deadlines from Pennsylvania, and a decision could come as early as Monday,” The Wall Street Journal editorial board wrote on Sunday night. “We hope the Justices intervene with a stay on the changes and guidance to lower courts not to rewrite ballot rules close to an election—for the good of the country and the Court itself…
“Democrats this year have pursued a lawsuit strategy to expand vote-counting past Nov. 3 for mail-in ballots, as well as to demand, no matter state law, that ballots without postmarks be counted and that bad signatures be fixable… The Pennsylvania appeal is from state courts, but the language of the U.S. Constitution gives state legislatures and Congress authority over election laws. Partisans can’t simply go to court in a state and then have a friendly state official sign off on a settlement to extend deadlines. If states want to change election laws, legislatures must do it.”
The board also argued that it’s “far better to clarify the rules in advance of an election” than try to figure out how to count ballots after November 3rd.
In USA Today, Adam Brandon argued that Dr. Anthony Fauci has said voting in person is safe and widespread mail voting could be dangerous to election integrity. Both things, he notes, are cause for keeping the laws we have.
“Thanks to Democratic court challenges, states such as Pennsylvania are relaxing restrictions for mail-in voting, flat-out changing the way we vote fewer than 50 days ahead of the election,” Brandon wrote. “We have always had absentee voting, but it has always come with a tried and true validation process to ward off controversy. The system only works if we keep the same processes in place throughout. By changing the laws for how mail-in ballots are counted, states are paving the way for chaos and uncertainty in the weeks after Nov. 3. To change election laws this late in the game puts partisan legal teams in charge of determining the results of an election, rather than American voters.”
In The Washington Examiner, Jeremy Beaman made a similar argument, writing that just 59% of Americans trust that votes will be cast and counted accurately. Even if much of the fault for this lack of confidence is with Trump, Beaman says, “state boards of elections and various courts have only worsened the situation by disregarding existing statutes and making up new rules. Less than a month away from Election Day, the rules are still changing.”
Fundamentally, I’m coming from a position where I want as many votes to be counted as possible. As I wrote on Friday, I generally view the things happening across the U.S. right now as attempts at voter suppression by the Republican party. You should not have to wait in line for 11 hours to vote. You should not need a witness signature on a mail-in ballot to vote. Your vote should not be thrown out if you mail it in before election day and USPS delays cause it to show up late. You should be able to drop your ballot off at a ballot dropbox that’s a reasonable distance from your home. It’s clear to me that Republicans in these battleground states don’t agree.
Obviously, they also understand the polling, which shows that Democrats are far more likely to vote early and vote by mail this year. And there’s no doubt they have solid legal ground to stand on to avoid changing election laws just a few months or weeks out from an election. But the full body of this story just feels slimy.
One simple solution to the post-election day chaos we’re facing now — where a winner may not be clear for days or weeks — would have been allowing states to start the count early. That’s a critical point here not enough people are talking about.
Michigan, for instance, tried to do this. The Democratic Secretary of State wanted to push through a new law that allowed clerks and election officials to begin processing and counting votes before election day. The Republican-controlled legislature ultimately passed a skinny version of her ask — allowing 10 extra hours of processing the ballots the day before election day only in cities with more than 25,000 people. Democratic Gov. Gretchen Whitmer ultimately signed the bill, though she wanted it to go much further. And election officials who were glad something was done are still warning that they probably won’t know up from down on election night.
Still, that thin measure will help marginally. In Pennsylvania, Democratic Gov. Tom Wolf wanted to update the laws so ballots could start being counted 15 days before election day. The Republican-controlled state legislature has refused, instead making a counteroffer of three days before the election on the condition drop boxes throughout the state are banned. In Wisconsin, proposals from Democratic lawmakers for early vote counting were deemed a “nonstarter,” according to Politico.
What conclusion can I possibly draw from this? Republicans are fighting the installation of more drop boxes for early ballots. They’re fighting extensions to accept ballots after election day. They’re fighting to limit the kinds of ballots that will be counted (those in Pennsylvania without a privacy envelope will be thrown out, those in South Carolina without witness signatures will be thrown out, etc.) And they’re also fighting laws that would allow more time for counting ballots as they come in. They’re doing this all in the context that Democrats are more likely to vote early, more likely to vote by mail and more likely to be first time mail-in voters (read: more liable to make mistakes).
I certainly understand the reservations around changing election laws this close to an election, and I wish this stuff had been addressed months ago. Democrats may ultimately pay the price for trying to change these laws if they only get temporary wins that are then reversed in the coming weeks — meaning voters will think they have more time or leniency on their votes and then lose both. But, again, many Democrats tried to change these laws back in the spring. Bills were rebuffed across the battleground states by Republican-controlled legislatures and now we’re tumbling towards election day chaos as a result.
The toughest question here is over the arrival of post-election day ballots. Fundamentally, it’s a bizarre prospect for Americans. I have mixed feelings about it myself. But I think given what we know about the potential mail delays, there’s room here for some flexibility. One option, which is not counting any ballots that arrive after election day, creates the risk of disenfranchising thousands of voters who may have done everything right but lose their vote over little more than bad luck. The other option, which is extending the vote by a couple of days, creates far less risk: the potential that in an extremely close election we’re waiting an extra few days for the final tally, in an election where we’re probably going to be waiting an extra few days anyway.
Republicans have argued that Republican-controlled state legislators — and not the courts — should have the final say on these rules, given that the Constitution grants states the ability to craft election law. This is a cute, albeit thinly veiled, circle of power that allows them to oversee their own election day fates. We have the courts for a reason — to adjudicate sticky situations like this. Panels of Republican-appointed judges are ruling against Republicans precisely because they understand the need for changes, and the wiggle room that exists in much of the election law being debated now. This is the most important election of many of our lives, and my position is that we should use that wiggle room to ensure every voice that wants to be heard gets heard. Anything less is a failure to live up to the promise of our democracy.
Your questions, answered.
Q: I have a question about the potential outcomes of Trump, and maybe Biden, getting COVID-19. If the worst were to happen and either of them died, what would happen with the votes from all the ballots that have already been cast?
— Julianna, Rhode Island
Tangle: Fortunately, it’s looking less and less likely this is a question we have to sort out. One, because President Trump appears to be in good health. But two, because the answer is we really don’t know how to handle this situation.
If a candidate dies this close to election day, there’s nothing to be done. Millions of votes have already been cast and ballots sent to voters, and there’s no time to replace them. That means, say, if Biden were to die, his votes would simply go to Harris and the party. What’s less clear cut is if a winning candidate dies shortly after the election.
The most likely outcome in either scenario is that the VP candidate would step in. They are, after all, already on the ballot. Both the DNC and RNC have processes in place to choose a replacement in a presidential election should their candidate die, and it’s tough to imagine either body going with anyone other than Pence or Harris.
But there are some wildcards. Remember: your vote isn’t technically what makes a president. State electors cast electoral college votes that are supposed to represent the popular vote winner of their states. That happens on December 14th this year. Then, on January 6th, Congress certifies those electoral college votes. Then, on January 20th, a president is inaugurated.
That means if a candidate were to die, there is potential for friction between what the party body (DNC or RNC) wants and what the state electors want. Conceivably, state electors could cast their electoral college votes for whoever the party wants, since they are vetted and empowered by the party in the first place. But “faithless electors” do pop up, and we had a record seven of them in 2016. If, on December 14th, enough faithless electors coalesced around someone other than the VP nominee or whoever the party wanted as a replacement for a deceased winner, then we’d have a lot more complexity and acres of uncharted territory. There’s also another wrinkle, which is that state electors, in many states, are bound by law to vote for the popular vote winner, dead or alive.
Jason Harrow and Lawrence Lessig, two constitutional law experts, recently wrote about this prospect for The Washington Post. They explained that, in the event a candidate were to die after winning the electoral college, some state laws, if read literally, would force presidential electors to cast their electoral college votes for a dead candidate — with no way to change it.
What happens then? According to Harrow and Lessig, it depends on what state you’re in. If the worst-case scenario had come to fruition and, say, Trump died on the eve of the election and then won, two conflicting realities would come face-to-face: 1) Many presidential electors would have to give their electoral college votes to Trump. 2) Those votes would not count, because a dead person isn’t eligible to be president.
You might assume that this would just mean a President Mike Pence — but that’s not so. Instead, it’s more likely that — just as in the event of an election tie — the decision would go to the state delegations of the House of Representatives. But it could also go to state leaders, which means a Democratic state delegation or Democratic governor may have room to try to award those electoral college votes that Trump won to Biden-Harris. This, however unlikely, would create a crisis unlike any our country has ever seen.
The simple reality is most states, and indeed our Constitution, are not prepared for such a situation, despite the fact we’ve had some close calls before. Harrow and Lessig make two suggestions: first, they say every state should add a stipulation to its election laws that allow electors to cast a ballot for a new party nominee in the event a candidate dies. Some states already have this stipulation. Second, they suggest every state promise in writing to permit electors to vote for a candidate of the same political party in the event the leading candidate dies.
In other words, they say states must commit to awarding the winning political party their votes if a candidate is deceased. That way, if Trump were to die after winning a state like Pennsylvania, the Democratic Governor there would not be allowed to try to assign his electoral votes to any non-Republican nominee.
Both of these new laws seem urgent, given the age of Congress and of our current presidential candidates. It’s actually quite absurd that we have no stipulations for this already in place. But for now, the best we can do is hope and pray it’s not an issue we need to face anytime soon.
A story that matters.
As a border wall has popped up in parts of the Southwestern United States, the drug trade has been driven underground. On the U.S.-Mexico border in Arizona, the city of Nogales is home to some of the most frequent trafficking — and for decades has sat above a complex web of tunnels that traffickers exploit to move both drugs and people. Mexican and U.S. patrols say they have found “tunnel after tunnel drilled into an 80-year-old drainage system that connects the two countries, 15 feet below the earth’s surface.” Authorities have no idea how much contraband makes it through the tunnels, but one narrow-dug passage could be worth millions to traffickers. The new system of tunnels is a reminder of the challenge that patrolling the border poses.
- 1.6 million. The number of voters in Florida who have already voted in the 2020 election.
- 2:1. The ratio of those voters who are registered Democrats vs. registered Republicans.
- 126,876. The number of people who voted early in person in Georgia yesterday.
- 41%. The percentage increase of early in person voting in Georgia yesterday compared to the first day in 2016.
- 600.The number of positive tweets Arizona Rep. Andy Biggs sent about President Trump over the course of 60 days.
- 51-41. Joe Biden’s lead over Donald Trump in Wisconsin, according to the latest batch of Siena College polls.
- 48-40. Joe Biden’s lead over Donald Trump in Michigan, according to the latest batch of Siena College polls.
- 48-42. Sen. Lindsey Graham’s (R-SC) lead over Democratic challenger Jaime Harrison in the latest Morning Consult poll of the race.
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For the last few months, coronavirus has been causing anxiety, panic, and in many cases death. One of the first people to issue the dire warning about the pandemic was Don McNeil, the legendary New York Times reporter who specializes in covering pandemics. He’s been pessimistic for months, but yesterday published an article that was riddled with hope and optimism about new treatments, the potential for a vaccine by this winter and the fact life may be normal again soon. If you’re looking for some light at the end of the tunnel, you should read it.