Vote by mail, or on Nov. 3? Neither
Iam voting early. In most states, Americans no longer have to wait until Election Day to cast their ballots. Minnesota and Virginia began early in-person voting on Sept. 18. By mid-October, voters in several battleground states will also start casting their ballots. New York’s early voting period starts Oct. 24. By Election Day, millions of votes will have already been cast.
I am not voting on Nov. 3 because the lines will undoubtedly be very long. I am not voting by mail because the odds are high that the ballot will either be invalidated by election law technicalities or attacked as fraudulent — and because, even if my vote is counted, I’m worried that a ton of mail will lead to a constitutional crisis. Let me explain.
Several years ago, President Obama appointed a commission to address long lines at polling places. A report was issued with important recommendations. Not much has changed on this front, however, and the problem is exacerbated by the reluctance of poll workers to show up during the pandemic. The American Bar Association and a slew of organizations are recruiting new poll workers to ease anticipated bottlenecks. Still, problems loom.
Many states have a vote-by-mail option, and because of the health crisis, procedures have been liberalized throughout the country, including in New York, allowing people to take advantage of it. In some states, mail-in voting is being challenged in the courts, reflecting the president’s broadsides against such voting. Why is Trump hell-bent against mail-in voting? Probably because he believes that mail ballots will favor Joe Biden. It’s hard to know if he is right, but he appears convinced there will be a “blue shift” — in states where he is leading on Election Day, a subsequent counting of mail ballots will move the totals in Biden’s direction.
I don’t know if the president is right to be nervous about this shift, but Democrats should not rely on a “let’s wait until all the mail ballots are counted” attitude. If millions of Democrats vote by mail, and the machine votes on Election Day favor the president, we can expect him to undermine the legitimacy of the count after Nov. 3 — abetted, no doubt, by an avalanche of lawsuits to enjoin the counting of these mailed ballots.
A surge in mail-in votes could therefore prevent a state from determining its winner for many weeks. Why is this a problem? Aside from the political instability this would cause, the law requires that each state’s victorious presidential electors meet and vote for president on Dec. 14. If even a few states are overwhelmed by mail votes and lawsuits contesting their validity, and they fail to name presidential electors by mid-December, two scenarios could occur — neither pretty.
On one hand, with the total number of electors reduced, the magic number to win the Electoral College is likewise lowered. The Constitution requires a majority of the “whole number of Electors appointed.” A candidate could win with fewer than the 270 votes normally required.
On the other hand, if failure by a state to name electors prevents Trump or Biden from reaching a majority, the constitutional provision requiring the House of Representatives to elect a president could be invoked.
The procedure followed by the House is even more undemocratic than the Electoral College. Each state, whether large or small, has one vote, and whichever party controls a state’s delegation would deliver its vote to Trump or Biden. Even if Democrats retain or increase their overall control of the House this November, it’s the party controlling a majority of the state delegations that matters for this procedure. Currently, Republicans have 26, the magic number for the House to elect a president.
As if these two possibilities aren’t troubling enough, there is another outcome that could upend the election. If a state is dithering over hundreds of thousands of paper ballots, its state legislature may try to name electors directly — without so much as a nod to the apparent winner of the popular vote. In 21 states, Republicans control the legislature and governor’s mansion. Would they dare short-circuit the counting to simply name a Trump slate of electors?
So I am voting early, in person. I do not want mail ballots to overwhelm the process and potentially cause election chaos. The more votes cast on or before Election Day, the more likely the election will be over by Nov. 3. Some important states, like Pennsylvania, do not have this option. Those of us who can vote early, though, should do so.