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. 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 Biden votes counted on election night and to have a lead, as opposed to waiting to take the lead based on delayed mail counting. Even if you’re not in a swing state, it is important to rack up votes and decisive leads in blue states. The media are bad at setting expectations and especially bad at overcoming Trump’s noise. The more votes are counted on election night, the more momentum Democrats will have, and the less opportunity for Trump to cherry-pick and spin in bad faith.]

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. Trump may or may not have a lead on election night, but he will have 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. Trump’s 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. Or even worse, Trump’s lawyers challenge enough blue states to stop their votes, and his lawyers claim that their red states are a majority of the lower total (because they have shut down the counts and excluded, let’s say, Pennsylvania, Wisconsin, and Michigan) so Trump leads 259 to 249 or so by the time January rolls around. And Trump says he won a majority of that rump electoral college by legal delay. Guess what the Supreme Court would say? “Political question,” let the House decide. Boom, Trump wins 26 to 23 in the House among 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:

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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