Norm Ornstein writes:

American voters face a nightmare in November. The recent stretch of primary elections has raised a slew of red flags of glitches, missteps, incompetence, and worse that could plague the national elections in November. In Wisconsin, the failure of election officials to send out absentee ballots requested by voters and the failure of the United States Postal Service to deliver them in time forced those voters to physically go to the polls during the pandemic. Once there, they faced long lines in part because of the sharply reduced number of polling places. In Georgia, a similar situation occurred. The state had a major shortage of election officials, poll workers, and functioning voting machines. All of these glitches produced lines of many hours, and authorities broke their promise to provide enough paper ballots to ameliorate the crunch. Voters witnessed a perfect storm of bad luck, malfeasance, and ineptitude. Kentucky was lauded for its relatively snag-free primary, but also saw an alarming number of votes by mail disqualified on narrow grounds.

These states are not the only ones with obvious problems in their election systems. The offenders are not all red states—or ones whose elections are run by questionable partisans. New York, among many others, has long been plagued by mismanagement of its elections, and it is also having problems fulfilling absentee-ballot requests; as the pandemic has caused tax revenues to plunge, the resulting fiscal shortfall may not leave election officials with the resources to print the ballots. The Postal Service is stretched thin and facing a hostile Republican reaction to its pleas for more money, and the perennial poll-worker shortage will likely be exacerbated this year by the reality that poll workers tend to be older and thus more vulnerable to COVID-19 and the flu. Many signs indicate that the spread of COVID-19 this fall could be severe—even more so if all schools are open—and a bad flu season could add complications.

Now consider another problem. Ballots for the fall presidential contest cannot be printed until every party certifies its candidates. That will happen for Democrats and Republicans at their conventions in late August. But what if other parties such as the Greens or the Libertarians delay certifying their candidates until late September? (In my more paranoid moments, I worry that a dark-money group favoring Donald Trump might reward a third party for doing just that.) In that case, ballots will take longer to print and mail to voters, meaning that perhaps millions will not receive their ballot by Election Day—and others might have only a few days to mail them, with no assurance that they will arrive on time. Many voters will go to the polls and file provisional ballots, which require even more time to tabulate. And if a large number of the votes by mail are disqualified because of missing signatures or other technicalities, legal challenges will be inevitable.

Imagine an election held on November 3, with the surge in votes by mail uncounted until days or even weeks after the election, followed by challenges over absentee and provisional ballots. These disputes could drag into December and have ripple effects on the election timeline mandated by law. As it stands, states must certify their electors by December 8, and electors must cast their ballots by December 14; Congress will meet to certify the votes and ratify the results on January 6, and the president will be inaugurated at noon on January 20. What if some states are unable to resolve their election controversies by December 8 or December 14? What if the legitimacy of some electoral slates is in dispute—and states send two separate slates for Congress to adjudicate? And what if a worsening pandemic prevents members of Congress from traveling back to Washington in time to be sworn in and resolve these disputes? Although the 1887 Electoral Count Act covers some of these situations, many ambiguities remain. [Continue reading…]