New York Daily News

Vote by mail, or on Nov. 3? Neither

- BY JERRY H. GOLDFEDER Goldfeder, is special counsel at the law firm Stroock & Stroock & Lavan LLP and teaches election law at Fordham Law School.

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.

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