The EconomistSeptember 5th 2020 BriefingAmerica’s presidential election 192
1ranks of those states which, like Colorado,
mail ballots to every registered voter.
Mr Trump has been fulminating against
these changes since early summer:“MIL-
LIONS OF MAIL-IN BALLOTS WILL BE
PRINTED BY FOREIGN COUNTRIES AND
OTHERS. IT WILL BE THE SCANDAL OF
OUR TIMES!”;voting by mail is “a corrupt
disaster” that “will lead to the most COR-
RUPT ELECTION in our Nation’s History”;
and so on. His animus is not restricted to
Twitter; expansions of mail-in voting are
among a huge number of changes to voting
rules related to the covid-19 epidemic cur-
rently being challenged in the courts. As of
August 31st, according to Justin Levitt, a
professor at Loyola Law School, courts in 43
states, Puerto Rico and the District of Co-
lumbia were looking at at least 228 such
cases. When rules change quickly in re-
sponse to an emergency, a certain amount
of legal scrutiny is a good thing. Still, it is
notable that most cases involve Democrats
pressing for broader ballot access and/or
Republicans doing the opposite.
Take Pennsylvania, a swing state that
Mr Trump barely won in 2016 and where
polls currently show him trailing Mr Biden.
Last year it expanded its provisions for vot-
ing in absentia; Mr Trump’s campaign is
challenging some of that expansion. The
campaign has also sued Nevada over a law
that sends an absentee ballot to every regis-
tered voter—something which several oth-
er western states do—increases the num-
ber of polling places, and allows
non-relatives to deliver the ballots of elder-
ly or disabled voters. All those things, Mr
Trump’s legal term argues without evi-
dence, raise the risk of fraud.
Some cases have already risen as far as
the Supreme Court, where the conservative
majority has shown little interest in ex-
panding voter participation, to the infuria-
tion of the liberal minority. When the ma-
jority overturned a decision by a Wisconsin
court to allow a period of grace for late bal-
lots in the state’s primary elections, Justice
Ruth Bader Ginsburg wrote that “It boggles
the mind” that the court would risk “mas-
sive disenfranchisement” by treating vot-
ing during a pandemic as no different from
“an ordinary election”.
In July Justice Sonia Sotomayor excori-
ated the majority for allowing Florida to
bar around 800,000 released felons from
the polls. In 2018 Florida’s voters passed a
constitutional amendment allowing all
felons except murderers and sex offenders
to vote as soon as they had completed their
sentence. In response the Republican-con-
trolled legislature defined the completion
of a sentence to include the payment of all
fines, fees and penalties. The Supreme
Court was not persuaded by arguments
suggesting that this amounted to a poll tax.
By ratifying a “pay-to-vote scheme” under
which ex-offenders must pay all fines be-fore punching a ballot, Justice Sotomayor
wrote, the Supreme Court “continues a
trend of condoning disfranchisement”.
Because of the limited time available,
many of these election questions are mak-
ing their way to the court as emergency ap-
plications; in such cases the justices hand
down verdicts with little or no explanation
after only partial briefing, no live hearing
and quick deliberation, and reveal their
votes only if they so choose. Dale Ho, the di-
rector of the voting-rights project at the
American Civil Liberties Union, argues
that the justices “need to explain their rea-
soning more” in cases about electoral law,
so as to provide a guide for lower courts and
the next round of litigants. Rick Pildes, a
law professor at New York University, says
the justices should strive for “significant
consensus” in issuing decisions on voting
rules if the election results are to be “broad-
ly accepted as legitimate”.Falls the shadow
While the courts deal with questions raised
by the states’ responses to covid-19, elec-
tion officials have to make them work on
the ground. Dealing with new counting
systems that comply with social-distanc-
ing requirements while also handling ab-
sentee and mail-in ballots in unprecedent-
ed quantities will be challenging. In New
York’s primary, on June 23rd, the volume of
mailed ballots returned in New York City
was ten times higher than usual. Thou-
sands of people did not receive the ballots
they requested; winners in some congres-
sional contests were not announced until
well over a month later.
To be counted at all, ballots need to get
where they are meant to be going by a cer-
tain date, no matter when they were sent or
postmarked. This is why the tenure of Lou-
is DeJoy, a generous Republican donor, as
postmaster general has been a subject of
great scrutiny. After being appointed inMay, Mr DeJoy set about implementing va-
rious operational changes at the United
States Postal Service (usps), an institution
where he had never previously worked.
These included restrictions on overtime
and limits on the number of trips mail car-
riers can make back to the post office to
pick up more mail.
The uspshas also removed hundreds of
mail-sorting machines from processing fa-
cilities, which makes delivery slower. In
Michigan—a crucial swing state which,
like Pennsylvania, Mr Trump narrowly
won in 2016 and where he is on track to lose
this year—postal-union officials say the re-
moval of machines has slowed sorting ca-
pacity by 270,000 pieces of mail per hour.
For a ballot to count in Michigan, it must
arrive at a county board of elections by
election day, no matter when it was post-
marked; delayed mail could easily disen-
franchise voters.
Mr DeJoy has said this is all essential
cost-saving. Others see his changes, imple-
mented so soon before an election heavily
dependent on mailed ballots, as deliberate
sabotage. At least 20 states have sued the
uspsover his changes or announced plans
to do so. Mr DeJoy reassured Congress in
August that the uspscould handle the up-
coming election. And under public pres-
sure he has vowed no further operational
changes. But he has not committed to re-
versing the changes already made.
These new burdens on changed systems
make it quite possible that America will
not see the sort of clean result it has come
to expect on election night. This was one of
the main conclusions drawn by the Transi-
tion Integrity Project through its war-gam-
ing. A number of swing states forbid elec-
tion officials from even sorting mailed
ballots before election day, which all but
assures several days spent counting. Offi-
cials will also need to verify provisional
ballots cast by voters whose eligibility is forLess swift completion?
UnitedStates,shareofvotescastbymailin 2016 presidentialelection,%,bystateSources: US ElectionsAssistance
Commission; WashingtonPost2Measures introducedforpresidential
election post-covid-Vote-by-mailapplicationorballotsenttoallvotersVote-by-mailintroducedAKALAZ ARCA COCTDCDEFLGA
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