CARTER And ELLIS: Political Overtime — What You Need To Know

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If the Year of our Lord 2020 hasn’t been strange enough for everyone, the election cycle has also been negatively unique, and it is possible the presidential election will end in a way never before seen in the modern political era. Due to so many states changing their voting systems — all but five to be exact — it could be weeks, if not months, before we know who wins the presidency.

It is conceivable President Trump will be the apparent victor on November 3rd, but that millions of mailed ballots will eventually tip the balance to former Vice President Joe Biden. This possible outcome even has a catchy name: the “red mirage.”

Recently, Federal Election Commission Chairman Trey Trainor wrote a column discussing the potential unintended consequences of the voting procedures changes, while Jim Pinkerton, the columnist and former White House aide to two presidents, composed an article covering potential serious vote fraud that has already occurred. Both bring forth key points that should concern all Americans.

The Trainor column (Unintended Consequences) highlights flawed state approaches and contrasts those with the tried-and-true Oregon system of 20 years. Mr. Pinkerton’s article (Vote Fraud and the Electoral College) details a situation in Minnesota and underscores how the Electoral College is an integral safeguard of our national electoral system. Each is well worth reading.

If the presidential election is as close as some people predict, we could be headed for a serious post-election crisis. Much of the controversy will center around the practice that 19 states have adopted of allowing votes to be received after the election.

In California, the post-election reception period will last all the way through November 20th. Michigan, by court order that changed the state’s election laws without going through the legislative process, is directed to accept ballots through November 17th. Nevada and Ohio don’t even have deadlines.

The states are directed to only accept ballots that are postmarked on or before Election Day, but that qualification is a misnomer. The post office doesn’t postmark this type of mail, but rather sends it with an electronic barcode. Yet, the barcode doesn’t indicate when the person actually places it in a mailbox or delivers it to a post office. Several states, including the key battleground state of Pennsylvania, will have special drop boxes in which voters can deposit their ballot, and they certainly won’t have a postmark since they’re not going through the postal system.

If the election is close to the point where post-election ballot reception battleground states such as Pennsylvania, Michigan and North Carolina are uncalled until all the mail ballots are counted — and the key states of Pennsylvania and Wisconsin are among those that cannot even start counting early and mail votes until Election Day itself — those states for sure won’t declare a winner until political overtime concludes.

The 2000 presidential election was marred by Florida’s “hanging chad” fiasco, delaying a resolution of that race for an agonizing 36 days.  With 19 states poised to play the role of Florida in this year’s election, the outcome might not be known for an ungodly length of time. And, to further complicate matters, because so many states are allowing ballot acceptance after the election, that outcome may well be determined by the inevitable flurry of lawsuits and countersuits as both sides seek to gain advantage.

Oregon, the first state to employ an all-mail system, has had few problems. They are among the 31 states who will require that ballots are received up to and on, but not beyond, Election Day. Many states, however, are not following the Oregon model, which explains why mail balloting caused so many problems during the primaries in New York (almost two months to produce a final tally), Maryland, Kentucky, Georgia, Nevada, Wisconsin and elsewhere.

The Pennsylvania system is the most troubling. Pennsylvania Secretary of State Kathy Boockvar has taken the curious step of creating what will be called an “unverified election.” While still unclear if she has the power to order such an edict, Ms. Boockvar has instructed county clerks through the state that they are prohibited from verifying a person’s signature on their absentee ballot with that of their original voter registration card. But what’s the purpose of a signature if not to help authenticate that a signed document was received from a particular person?

If the clerks are prohibited from verifying signatures, then we can count on innumerable problems that will require a long and undeniably ugly legal challenge that will eventually land in the laps of the Supreme Court Justices to solve. (And consider what happens if the Senate fails to confirm a ninth Justice prior to November 3 and the Court splits 4 to 4 on some matter of electoral importance.)

If we find ourselves in a situation where states cannot certify a final election result by early December, states like Pennsylvania, Michigan and North Carolina could become the focal points of political overtime.

Taking it further, these states, if they can’t produce certified election results, may not be able to send delegations to the Electoral College vote on December 14th. If this occurs, we may not see a presidential candidate officially reach 270 Electoral Votes. This means the election would be resolved in the new House of Representatives in early January where each state, and not each member, will have one vote.

Simultaneously, the Senate would elect the Vice President, so election problems could conceivably dictate those outcomes, too. If the Vice President can be elected in the Senate before Inauguration Day on January 20th, then he or she would become Acting President until the national election is decided.

These are just some of the pitfalls that America faces if the presidential election is close enough to be forced into political overtime. The states can still address their systemic problems, but will internal partisan politics keep us from an election outcome that people will trust?  Unfortunately, probably so.

James Carter served as the head of tax policy implementation on President Trump’s transition team.  Previously, he was a deputy assistant secretary of the Treasury and deputy undersecretary of labor under President George W. Bush.  Jim Ellis is the founder of the Ellis Insight election analysis service and Senior Political Analyst for the Business-Industry Political Action Committee (BIPAC).