If you use a “mail” or “absentee” ballot, even if you drop it off directly at the designated county drop-box or polling center, it most likely will not get counted on Election Day, and it can easily be challenged and delayed and even rejected on a technicality. If you can, please vote EARLY IN-PERSON with a regular ballot, not a mail-in ballot that depends on envelopes and signatures.

A must-read article by Greg Sargent in the Washington Post on how Trump can slow down mail service to steal the election. He found that the key swing states have a rule: mail/absentee ballots that arrive late (even if they are post-marked before the election) will not be counted.

My long-standing concern is that each mailed ballot is its own hanging chad, its own built-in legal delay. A mailed ballot can be challenged based on postmark, arrival, signature, etc. Lawyers can use these challenges in bad faith (like they did in Florida 2000) to grind any count to a halt. That was going to be the Republican strategy now that we all know that mailed ballots are going to be much more heavily Democratic, leaving Election Day votes more heavily Republican (and counted immediately). If you can grind the vote count down to a halt, states can miss the Electoral College deadlines, no candidate gets to 270 votes as states are blocked from certifying their Electors, and the election can get thrown to the House (like in Jefferson v. Burr in 1800). Under both the original Constitution and the 12th Amendment, the House vote is by state delegation, not by number of representatives. [Non-partisan factual observation: The Republicans will have at least 26 state delegations in 2021, because there are more Montanas and Mississippis than Californias and New Yorks.]

I hate to say this, but I think it is time to shift our focus from mail/absentee voting…

to EARLY IN-PERSON voting.
Obviously, in-person voting has Covid-19 risks.
*No long lines on election day.
*No deliberate or accidental mail delays.
*No bad-faith legal challenges on postmarks/signatures to slow down vote count.

[Update Aug. 17: Jamelle Bouie in his NY Times op-ed adds another reason: Early in-person votes will be counted on election day, and election night momentum is crucial. It is important for public opinion to have more votes counted on election night. Even if you’re not in a swing state, it is important to have more votes counted on election night. The media are bad at setting expectations.]

The bottom line is that the swing states (including IA and TX but not NH) all have some kind of early voting. PA is county-by-county, but counties that offer a mail option also provide direct drop-off at county office (these mail votes still need signatures and are thus vulnerable to legal tactics, but at least the drop-off avoids any mail sabotage).

[Update: I’ve been asked to explain my concerns about legal delays of mail and absentee ballots a bit more clearly. Let’s start with Florida 2000: Florida used hold-punched ballots, and any ballot that wasn’t fully punched (generally because of old machinery or uncleaned machines) had a “hanging chad” piece of paper. In the recount, any hole-punched ballot with a “hanging chad” could be challenged and scrutinized for “voter intent.” Even ballots that were mostly punched for Bush or Gore could be checked for several minutes. The Bush campaign had the lead and had a majority of states in the House, so they had a strategy to delay. In 2020, there may be even more of a strategy to delay and run out the clock on the electoral college.

EVERY mailed vote is a hanging chad, because every mailed vote has an envelope with signatures on it. Lawyers can challenge every signature, meaning a delay of several minutes or longer for each mailed vote. Now what if we’re talking about Pennsylvania, a state with 6 million votes, and 3 million mailed ballots, 3 million signatures, 3 million postmarks. Imagine counting 3 million hanging chads. This is a recipe for running out the clock on Pennsylvania’s votes and the next thing you know, no one has 270 electoral votes, and arguably the House will choose. If lawyers challenge enough states to stop their votes, the candidate who actually lost the real vote might have a temporary lead by blocking his opponent’s states from certifying. By the time January rolls around, the loser may have more electors due to this legal strategy: a “rump” electoral college lead by legal delay. Guess what the Supreme Court would say? “Political question,” let the House decide. [And non-partisan FYI, Republicans are likely to have a 26-24 lead among House state delegations].

The following is a chart of states have “early in-person” voting (ballots that are automatically counted on election day) and “early absentee/mail drop-off” (which is a second-best because it avoids needing to use the USPS, but those ballots are often not counted on election day, as determined county-by-county, and have signatures that can be challenged):

Here are resources to check how you can vote early in-person (or by mail/absentee):

Bonus states: Massachusetts: Likely early voting Oct. 23 to Oct. 30. For Sept 1st primary, the early voting is Aug. 22-28. Find locations by town here.

New YorkStarts 10 days before the election.Ends 2 days before the election.


Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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