The Vote And Voting Problems, Pre-Election Day 2020

On Wednesday afternoon, the Supreme Court rejected a second attempt by Pennsylvania Republicans to stop late-arriving ballots from being counted up to three days after Election Day. This means that the deadline for those ballots is almost certainly safe through Nov. 3. But what happens after that is still a bit up in the air. That’s because in a statement attached to the order, three of the conservative justices — Samuel Alito joined by Clarence Thomas and Neil Gorsuch — wrote that while they thought there was a “strong likelihood” that the Pennsylvania Supreme Court’s decision to extend the deadline violates the U.S. Constitution, there wasn’t time to decide the issue before the election. (To be clear, this was not a formal dissent, and the conservatives seem to agree with the decision to not expedite the case. Justice Amy Coney Barrett, Trump’s most recent nominee, also didn’t participate in the decision-making because she joined the court so recently.)

But Alito also explicitly noted that ballots arriving after 8 p.m. Eastern on Election Day will be segregated so the issue can still be revisited if necessary after the election. That suggests that some of the conservative justices may be contemplating a post-election scenario where they might reconsider Pennsylvania Republicans’ request to not count these ballots.

Marianna Williams from Dallas, Texas: If you vote early or by mail, but then die before the election, is your vote still counted?

This is a dark (but totally valid) question that pops up in arcane corners of election law from time to time. And like so many of the other great questions we’ve been getting from readers, the answer is … it depends.

According to a recent tally from the National Conference of State Legislatures, at least 12 states direct election officials to count absentee ballots cast by eligible voters who die between when they vote and Election Day. Florida, for example, explicitly says that as long as a valid ballot (meaning the voter’s signature is verified) is postmarked or received by election officials before the voter’s death, the ballot will count. Another 15 states expressly prohibit officials from counting these ballots, and the remainder don’t specifically address it. In many of those states, such as North Carolina, an absentee ballot can be challenged on the grounds that the person who cast it died before Election Day.

I should note that the existence or inclusion of these ballots is not indicative of voter fraud. First of all, there is no evidence of widespread fraud in which dead people cast ballots. Secondly, the number of ballots potentially affected — even during a time when hundreds of Americans are dying of the coronavirus each day — is relatively small. In 2016, Colorado, one of the 15 states which doesn’t allow these ballots, actually counted between 15 and 20 ballots cast by voters who died after mailing in their ballot but before Election Day. (This was in a state where more than 2.7 million early or absentee votes were cast in 2016.)

A Michigan judge last night struck down a directive from the Michigan secretary of state that prohibited the open carry of firearms near polling locations and absentee counting boards on Election Day. (State laws that ban concealed carry at certain locations, such as schools or churches, will remain in effect.) State Attorney General Dana Nessel said her office would appeal the decision.

Conversation around voter intimidation has taken on new urgency this cycle. While experts in election law and in armed groups told FiveThirtyEight’s Maggie Koerth they don’t believe the risk of armed or threatening poll disruptors is the greatest threat to the election, they pointed out that the fear of voter intimidation could, itself, intimidate voters.