The Vote And Voting Problems, Pre-Election Day 2020

If there’s one theme of the 2020 election, it’s the race’s remarkable stability. But that definitely hasn’t been the case when it comes to election laws and procedure. Because of COVID-19, states have changed guidelines ranging from when applications for absentee ballots must be received to early voting hours to when election officials can begin processing ballots.

We’ve spent the last two and half months tracking these changes, which have emerged from statehouses, court rulings, governors’ mansions, secretaries of state and legal settlements.

If they’re not on this live blog, you can find them in our guide on how to vote — anything underlined in orange is new due to the pandemic.

It’s hard to summarize the current state of the American elections system, because it’s designed to give states a lot of latitude. (What states do with that latitude is a whole other story — voter suppression is, and remains, a real issue in this country.) That said, there’s generally been a trend toward making it easier to vote absentee this year. States like California, New Jersey, Nevada and Vermont mailed ballots to all active voters for the first time; some, including Arizona, Minnesota and Wisconsin, sent all voters an application for an absentee ballot; and still others, like Kentucky, New York and South Carolina, permitted anyone to vote absentee, rather than requiring an excuse as they had in previous elections.

Not all of these changes will exist beyond the 2020 election, but for at least this cycle, we’re seeing a new election administration system piloted in real time. And by most measures, it might be working: Almost 97 million people have already voted early or absentee, a record-breaking number. And with nearly 160 million people eventually expected to cast a ballot in the 2020 election, participation in American democracy could reach new highs — partly thanks to some of these changes to election law, partly despite others.

Issues of voting rights and election administration will, of course, continue to be relevant — both on Election Day itself, as voters pack into the polls, and in the days after, if there are difficulties with the vote count or legal challenges to the results. While we’ll continue to follow those stories on our election night live blog and in articles after the election, this is the end of the road for this particular live blog. Thanks for joining us!

It’s been a busy month for court cases related to the election, with emergency rulings coming down as recently as yesterday afternoon, when a federal judge refused to throw out over 125,000 ballots cast at drive-through sites in Harris County, Texas. (In a late-night order, an appeals court also refused to issue an emergency injunction that would have shut down drive-through voting sites on Election Day.)

But the most closely watched court has been the Supreme Court, and depending on the outcome of the presidential race, it will likely continue to be where attention is most focused. It has taken us a while to get much of an explanation from the justices about the reasoning behind many of their responses to emergency voting-related orders, but by refusing two different times to haltt a Pennsylvania Supreme Court decision that allows election officials to count mail-in ballots that are received up to three days after Election Day, we got some insight into how the justices are thinking about these cases. There’s been some significant disagreement on the court, including among the conservatives, but Chief Justice John Roberts’s perspective is the one that’s been decisive in their orders so far. And essentially, if we look at what Roberts wrote in other cases, he largely thinks that federal courts should not be making changes to election procedures in the lead-up to the vote and instead, should be deferential to state courts and elections boards.

Under that line of reasoning, an extended ballot receipt deadline in Minnesota which was recently thrown into question by a federal appeals court ruling would seem to be safe, since it was the result of a state court consent decree, but the wrinkle is that none of the pre-election cases that made it to the Supreme Court were decided with the input of Justice Amy Coney Barrett, who joined the court just last week. Her approach to these cases — including whether she’d recuse herself — is still unknown, and that leaves a big question mark as we move from the pre-election phase of litigation into the cases that will revolve around procedures on and after Election Day.

Roberts was the decisive vote in most of the controversial cases before the election, so that uncertainty is a big deal if (and this is also a big if!) we end up in a situation where the margin is close enough in a key state for the late-arriving ballots to be potentially decisive. The rest of the Supreme Court’s conservative bloc — with the exception of Barrett, of course — has signaled that they do not agree with Roberts’s approach to state court rulings on election law, and several suggested that they think the Pennsylvania ruling is unconstitutional.

Donovan Sheets from Tallahassee, Florida: If I have already received my mail-in ballot, can I still vote in person as long as I do not submit my mail ballot?

Generally, yes, but like everything else about election administration, it depends on the state. Some states will let you vote as normal; others will have you cast a provisional ballot, which will be discarded if it’s later found that you voted by mail as well. Some states require you to bring your mail ballot to the polls so it can be spoiled or destroyed; others will just take your word for it — particularly useful for people who requested a mail ballot but haven’t received it yet (in which case voting in person is almost certainly your only option). To see what the rules are in your state, check out this very helpful ProPublica article.