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.

On Monday afternoon, a federal district court judge in Texas dismissed an effort by Republicans in the state to throw out about 127,000 ballots in Harris County cast via drive-through voting. The judge, Andrew Hanen, ruled that the group of activists and candidates who brought the case don’t have standing to sue. But the Republican-appointed judge also seemed irritated by the fact that they waited so long to bring the complaint before the court, asking the plaintiffs, “Why am I just getting this case?” He noted, too, that even if the plaintiffs had cleared the bar for standing, he still wouldn’t have granted the injunction for ballots already cast, although he did say that he would block Harris County from offering drive-through voting on Election Day. (Again, this is all hypothetical since he ruled that the plaintiffs don’t have standing.)

Hanen did order the county to maintain all drive-through voting records and data in case his ruling is reversed by a higher court — so it’s possible we haven’t heard the last of this. But the Texas Supreme Court rejected a similar case from the same plaintiffs yesterday. Now that Hanen, who’s known as an especially conservative judge, also ruled against the GOP plaintiffs, things are not looking good for this election saga.

Pennsylvania is probably the single most important state in the presidential race this year, and because election workers aren’t allowed to start processing mail ballots until Tuesday morning, it will probably take a few days to report all of its results. Adding to the potential chaos, counties aren’t actually required to count mail ballots on Tuesday — just strongly encouraged to do so.

That’s why this map from the Pennsylvania Capital-Star is so useful:

It shows when each county plans to start counting mail-in ballots, how well equipped they are to count quickly and how many they have to get through before they’re done. This is also important because the counties that don’t plan to start counting mail-in votes until Wednesday will almost certainly have too-good-to-be-true results for Trump on Nov. 3.

Beginning today in Michigan, election officials in some cities will be able to start processing absentee ballots. The new law passed last month allows officials in cities with at least 25,000 people to begin getting absentee ballots ready to count, sorting them and opening outer envelopes. But they can’t start counting until tomorrow, and can only process today from 10 a.m. until 8 p.m. Previously, officials had to wait until Election Day to start processing absentee ballots. Still, even with a small head start, Michigan’s secretary of state estimated that it could take until Friday for all the ballots to be counted.

For the second time, the Texas Supreme Court on Sunday denied a legal challenge to drive-through voting in Houston’s Harris County. However, a separate challenge is still pending in federal court, with a hearing scheduled for Monday morning. The Republican plaintiffs are attempting to invalidate the almost 127,000 votes cast via drive-through voting in the Democratic-leaning county.

When the pandemic struck the U.S., election officials recognized immediately that the systems they’d used for years would need to be bolstered in ways they’d never imagined. They also knew that their budgets wouldn’t sustain the expense, and they appealed to Congress for help. States ultimately received $400 million in funding — short of what was needed but still significant.

Now, as we head toward the final days of the election and as an unprecedented number of voters have already cast their ballot, I’m hopeful that the election will be safe and secure. This is in part because of the important work of election officials, who have worked tirelessly to expand voting options and protect the health of voters and election workers. This is also because of public support. People have helped spread awareness of different voting options, voted early to reduce stress on election day systems, and even flooded election offices with applications to serve as poll workers.

I’m most focused on states like Michigan, Pennsylvania, and Wisconsin, where we expect unofficial results to be released over a longer period of time than we’ve seen in the past. But it is not because I expect any problems to occur with the actual counting of votes, or that slower counting should lead us to doubt the accuracy of results. My concern is that people might try to take advantage of the uncertainty that exists on election night to create an illusion of chaos or illegitimacy.

In some states, the vote count will climb considerably after election officials release initial unofficial results on election night. This shouldn’t be a cause for concern, though. Typically, this happens for three reasons.

First, there are ballots that were received on or before Election Day (both mail and in-person), but that election officials did not have time to count on Election Day. Second, in some states, there are ballots that were cast by a voter on or before Election Day, but did not arrive by mail until after Election Day. Third, there are provisional ballots, which are cast on or before Election Day but can’t be counted until after because some additional verification is needed.

In all three cases, there is nothing different about these votes from the ones that are added to totals on election night. They are all legitimate votes cast by voters on or before Election Day. The order in which election officials count them — or how long it takes to count them — does not make them worth more or less in the final total.

There is some speculation that a cyberattack or technical failure could disrupt the reporting of results. But if that were to happen, there is almost always a back-up in place that election officials can fall back on to verify results, including an opportunity to double-check numbers or correct any errors in a later step.

Accuracy takes time. But counting every vote — and counting every vote correctly — is worth the wait.

On Friday, FiveThirtyEight talked with Derek Tisler, fellow with the Brennan Center for Justice’s Democracy Program, and coauthor of The Roadmap to the Official Count in an Unprecedented Election, which covers the measures election officials are taking against fraud and ensuring every vote is counted accurately. The conversation has been lightly edited.

Q: Something we’re trying to help readers at FiveThirtyEight understand is what the expected vote might look like on election night — which states will have results, whether there will be a red or blue shift in the ballots reported, etc. But a key part of this is understanding what mechanisms are in place to help ensure a fair and accurate vote count.

We were hoping you could help walk readers through that broadly. How much of the voting counting process is the same state to state and how much of this varies? Additionally, what new challenges are posed by COVID-19?

The basic steps for counting votes are the same in every state and they’ve been the same for decades, Election officials: 1) verify voter eligibility (after receiving mail ballots or while checking in voters who cast their ballots in person); 2) count all the ballots and release unofficial totals to the public and the media; 3) double and triple check their math; and then 4) once they are sure they have all the votes counted, certify their final results.

Steps 3 and 4 always happen after election night, and usually after we know who won the presidency based on the media’s projections. Indeed, the official vote counting process in each state typically does not finish until two to five weeks after Election Day. And it will be no different this year. Election officials are confident that they will meet their certification deadlines.

What will be different this year is the timing in between the four steps. And this will vary considerably among states for two main reasons.

First, people choose to vote differently in each state, and the counting process looks different for each method of voting. When you vote in a polling place, the process of checking in voters and verifying eligibility is done before the voter casts their ballot. When you vote by mail, the process of checking in voters and verifying eligibility is done after the voter casts their ballot, but before the ballot is counted.

Because of this shift in when verification is done, mail ballots tend to take longer to count than in-person ballots. So in states where more voters are casting their ballots by mail, we can expect the processing and counting to take longer as well. And because of the pandemic, most states are seeing a huge surge in mail voting.

Second, each state sets its own rules for when to begin counting mail ballots. Many battleground states – including Arizona, Florida, Georgia, and North Carolina – allow election officials to begin verifying voter information on mail ballot envelopes, opening those envelopes, and even counting the ballots before Election Day.

But in Michigan, counting can’t begin until Election Day, and in Pennsylvania and Wisconsin, election officials can’t even begin verifying and opening envelopes until Election Day. So even as election officials are following largely similar steps in each state to determine and verify the accuracy of results, these variations in state rules influence how fast they can release unofficial results to the public.

CJ from Brooklyn, New York: There’s a lot of talk about it taking longer to count mail-in ballots than in-person ballots on Nov. 3. Is there a reason those ballots take longer to count (other than some are still eligible for counting after the polls close)?

There are a few reasons. First, mail ballots need to be physically removed from their envelopes, signatures need to be verified and the ballots need to be inserted into tabulation machines. By contrast, in-person votes don’t have envelopes, your signature is verified when you check in (if that’s even a requirement in your state) and voters themselves insert their ballots into the machine (all election officials need to do at the end of the night is hit a button and the machine will spit out the results). In addition, as you mention, some states accept mail ballots that arrive after Election Day, and some also have a grace period of sorts in which people can fix, or “cure,” problems with their ballot.

If you’re wondering when mail ballots — or, indeed, all ballots — will be counted on election night, I recommend our new interactive, “When To Expect Election Results In Every State.”

Local journalism helped double the number of voting locations in a Los Angeles suburb.

Less than a week before Election Day, an analysis of county voter data by ABC7 found that Huntington Park was set to have less than one polling location per 10,000 voters while surrounding communities like Beverly Hills and Bell had more than one per 10,000.

“This is what voter suppression looks like. And it’s unfortunate, and it’s heartbreaking that nobody’s talking about it,” vice mayor Graciela Ortiz said.

The two planned locations for Tuesday were half of the number that were available in the March primary, when the vice mayor said some local residents waited about four hours to vote despite the COVID-19 related health dangers.

At first, county election officials told ABC7 that open voting allowed Huntington Park residents to drive to voting sites in other towns. But the vice mayor pushed back, noting that many of her community’s residents didn’t have the luxury of owning a car. Huntington Park is a 97 percent Hispanic community with a median income that is just above half of the statewide median.

Thursday evening — a day after the ABC story — L.A. County Supervisor Hilda Solis and county officials announced a turnaround.

They will add two additional voting locations on election day in the city of nearly 60,000 people – still less than some surrounding areas, but an improvement for voters.

The two extra mobile voting locations will be at a park and a middle school on Tuesday.

The 8th Circuit Court of Appeals has just ruled that Minnesota cannot count ballots that arrive after 8 p.m. on Nov. 3. Earlier this month, a federal judge upheld a state court agreement — originally approved in August — that allowed the counting of absentee ballots received up to seven days after Election Day, but state Republicans quickly appealed the decision.

In its ruling, the 8th Circuit wrote that the state legislature, not the secretary of state, had the authority to set election law. It also instructed the state to segregate the late-arriving ballots; it remains to be seen whether they will be counted.

If the early margins of victory are sufficiently high, then we are unlikely to see high-profile lawsuits challenging the count. This scenario becomes more plausible if the margins are closer than the polls predict, and if multiple states are still in play.

The most likely litigation scenarios involve rejected absentee ballots. Given the surge in absentee ballots this year, and the potentially high numbers of absentee ballot rejections, it is not impossible that the number of rejected absentee ballots could exceed the margin of victory in multiple states. This would be novel: In past elections, the number of rejected absentee ballots has generally been too small to swing elections.

Nationally, the absentee ballot rejection rate was just under 1.5 percent in 2018 — and more in states like Georgia (3.1 percent), North Carolina (6.1 percent) and Pennsylvania (4.5 percent), not to mention non-battlegrounds like New York (13.7 percent) and Arkansas (7.6 percent). While these rates are high, absentee ballots in past elections have made up only a tiny portion of the total ballots cast in most battleground states, and so the total number of rejected ballots was fairly low.

But this year, absentee ballots are expected to make up roughly half the votes in those states. We have already seen high numbers of absentee ballot rejections in the primaries. In Wisconsin — which Trump won by just under 23,000 votes in 2016 — 23,196 ballots were rejected in the presidential primary alone.

Based on these numbers, campaign attorneys seeking to maximize their candidates’ chance of victory are likely to consider pursuing post-election litigation, recounts and contests in states with wider margins than they ordinarily would consider. As we’re seeing during the lead-up to Election Day, these disputes could be litigated in multiple federal and state courts at the same time.

What does this mean for the courts? For one thing, they may be very busy. Litigation is a normal (though episodic) part of the counting process, and election officials and parties are used to that. Beware of efforts to paint ordinary lawsuits as an election crisis.

What is not normal is for courts to announce a new legal doctrine after Election Day that results in valid votes not being counted and potentially impacting the outcome of the election. That is what happened in Bush v. Gore, and the Supreme Court paid a price in lost credibility as a result. Fortunately, we are not likely to see a situation where this could happen again this year.

But that doesn’t mean that the role of the courts hasn’t changed substantially this year. It has.

The U.S. Supreme Court has made it clear in case after case that while it doesn’t want to change voting rules so close to an election, it’s not interested in expanding voting rights, either. The impact of this on the federal judiciary has been swift and dramatic. After the high court issued a ruling on Oct. 2 halting a voting rights win out of South Carolina (and reinstating the state’s witness requirement for absentee ballots), more than a dozen federal courts of appeals across the country followed suit. These decisions will make it harder for advocates to protect voting rights going forward. And looking ahead, at least some of the justices seem poised to go further and shield state legislative decisions against voting rights challenges regardless of when they are brought.

But federal courts aren’t the only institutions that protect voting rights. Congress is another critical player. As Justice Gorsuch wrote this week, if a state’s rules for federal elections “need revision,” the Constitution makes clear that “Congress is free to alter them.”

Two key bills that are currently pending before Congress would undo some of the Supreme Court’s recent decisions and would expand voting access across the country (along with other democracy reforms): H.R. 1 (the For the People Act) and the John Lewis Voting Rights Advancement Act. The House passed both bills this year, but they stalled in the Senate. If they pass next year, there will be less cause for voting rights advocates to turn to the courts.

Typically, rulings issued before Election Day do not change afterward. But just yesterday, Justice Alito, joined by Justices Thomas and Gorsuch, penned an opinion openly inviting interested parties to come back to the court after Election Day to prevent Pennsylvania from counting late-arriving ballots, despite the Pennsylvania Supreme Court’s ruling that the state constitution requires those ballots to count, and despite the fact that the U.S. Supreme Court twice denied pre-election motions to block those ballots from being counted. Pennsylvania Secretary of State Kathy Boockvar, for her part, has agreed to segregate those ballots in the event they are disputed after the votes are cast. So the short answer is yes, there is reason to think that the Supreme Court’s ruling with respect to those ballots could change.

Based on the opinions issued over the past week in cases out of Wisconsin, Pennsylvania and North Carolina, there are at least four votes on the high court for one of the claims raised by the Pennsylvania GOP — that the U.S. Constitution prevents state courts from interpreting their state constitutions to constrain state legislatures in a way that changes their federal election procedures. This argument is inconsistent with the Supreme Court’s past pronouncements on the constitutional provision at issue, most recently in 2015. If it takes hold, it would cause chaos in election law, upending countless past decisions and practices across the country. It’s worth noting, too, that Justice Amy Coney Barrett did not take part in any of the pre-election cases, and her vote could well be decisive if the issue comes up again.

On the other hand, it is still pretty unlikely that the Supreme Court will reverse course in a way that changes the vote in Pennsylvania. First, only three justices signed onto the suggestion that the court may rule differently in this case before the count is done. Chief Justice Roberts is unlikely to go along; in a separate opinion in the Wisconsin case, he suggested that he does not think the Constitution limits state supreme courts in this way. In that same case, Justice Kavanaugh stressed the need for “the rules of the road” to “be clear and settled” before the election, suggesting that he too might not support a post-election ruling that tosses out ballots cast by voters who relied on the rules set beforehand. For her part, Justice Barrett may very well recuse herself from considering cases impacting the presidential election, as many have urged her to do after the president tied the nomination to his election litigation prospects.

More broadly, despite all the pre-election activity, the chances that the Supreme Court will rule in a case that determines the presidency is very, very small.

At this point, the vote is unlikely to be close enough for litigation to make the difference. Moreover, Democrats have mobilized their voters to vote early, either in person or by mail, reducing the number of ballots that can be contested later.

The justices have a strong incentive to avoid that scenario. If the Supreme Court helps decide the presidency or control of the Senate by issuing a ruling that’s sharply split on ideological lines, it would dramatically undermine confidence in both the court and the election. It would also strengthen the calls for reforming the court.

Earlier today, FiveThirtyEight talked with Wendy Weiser, vice president of the Democracy Program at the Brennan Center for Justice, about the state of election law in the lead-up to the election. The conversation has been lightly edited.

Q: Something we’re tracking closely at FiveThirtyEight is all of the different election law cases making their way through the system. How important is it that many of these issues, like when a ballot can be postmarked in order to count, are being decided now? For instance, if the courts are resolving most of the questions about deadlines/ballot requirements now, does that actually leave less room for post-election maneuvering? Or is that unclear at this point?

It is always better to resolve election-related disputes before Election Day than afterward — especially at a time when there is a concerted effort, including by the president of the United States, to undermine confidence in the results.

And indeed, among the unique elements of the contentious 2020 election is the unprecedented volume of election-related lawsuits long before the first ballot was cast. Overall, there have been roughly 300 pre-election lawsuits in state and federal courts. And a sizable chunk of these lawsuits dealt with the rules for counting absentee ballots.

The most common issues were whether to count absentee ballots sent before Election Day but received after (as of Oct. 28, 18 states and Washington, D.C., will count those ballots), and whether voters should be given notice and an opportunity to cure any technical defects with their absentee ballots before rejecting those ballots (as of Oct. 28, 23 states offer a cure opportunity, and other states like Pennsylvania limit the bases on which officials can reject ballots).

But now, those lawsuits have mostly run their course before the election. The upshot: The U.S. Supreme Court and the federal appellate courts have blocked all federal court rulings extending ballot receipt deadlines, but left standing extensions issued by state legislatures, state officials and state courts. And in total, the U.S. Supreme Court weighed in on 13 motions in 11 cases, but in a somewhat unusual move, the court didn’t issue a written explanation for its rulings.

At first, the court’s decisions seemed to be driven by the idea that federal courts should not issue rulings changing voting rules so close to an election, even when enforcing constitutional rights. But recent statements suggest that at least some justices would like to go further in rolling back voting rights protections, at least against state legislative decisions.

So what does this all mean for post-election litigation?

Not that much, in terms of candidates’ willingness to sue. Post-election litigation is not unusual in our system, with or without a pandemic. There are multiple points in the post-election process where legal disputes can arise, and if any party sees a potential advantage, we can expect litigation.

Typically, post-election litigation centers around recounts, which focus on determining voter intent on individual ballots. Think Bush v. Gore and hanging chads. We may well see recounts and contests this year if any races are close enough. But those are a normal part of the post-election process, and candidates can take advantage of those processes when they meet the criteria set by each state. (Look here for how the post-election process ordinarily works and how it could be impacted by measures taken to protect the vote during the pandemic.)

Sometimes, candidates spar in court over rejected absentee and provisional ballots. That was one of the big issues in the contested Senate election recount between Al Franken and Norm Coleman in 2008. This year, given the surge in absentee ballots and the likely increase in provisional ballots, that’s the most likely terrain for litigation — as it was before the election.

Fortunately, some of the most contentious issues have already been resolved in pre-election lawsuits. But that doesn’t mean that they cannot come up again in different forms or under different legal theories. And some of the issues have not yet been fully vetted in court.

Take, for example, the Pennsylvania Supreme Court’s decision to prohibit election officials from counting “naked ballots,” meaning ballots that were not placed in an additional privacy sleeve in their absentee ballot envelopes. That ruling was based on the court’s interpretation of state law. No court has yet considered whether rejecting an otherwise valid ballot for this reason violates federal constitutional protections against undue burdens on the right to vote. If there is a large number of such naked ballots, as Philadelphia’s top election official predicted based on past elections, we might see that lawsuit.

We are less likely to see litigation (or at least successful litigation) over absentee ballots that were not rejected by election officials, because once a ballot is verified and counted, it can no longer be identified and removed from the count. A notable exception is Pennsylvania, where election officials will segregate the valid absentee ballots received after Election Day, as the state’s ballot receipt deadline is still the subject of ongoing litigation.

Courts generally do not change the rules after the election in a way that results in fewer ballots counting, and for good reason: Under the Constitution, voters should be able to rely on the state rules and practices in place when they cast their ballots.

Because you cannot un-count ballots, we are also likely to see lawsuits seeking to prevent ballots from being counted in the first place. Indeed, the Trump campaign has already filed a lawsuit trying to stop election officials from counting absentee ballots in Las Vegas until the campaign is offered an opportunity to observe and challenge those ballots. Republicans have also filed — and lost — suits to expand opportunities to observe and challenge ballots in Pennsylvania, North Carolina, Texas, and California. And on Oct. 27, the GOP sued to stop the counting of ballots cast via curbside voting in Harris County, Texas. These kinds of suits are unusual and tend not to succeed. But given the Trump campaign’s strategy so far, we may see a lot of them — and even more outlandish ones seeking to declare the election rigged and invalid.

In short, if the results are close, the post-election litigation landscape may be almost as messy as the pre-election landscape. It will be constrained somewhat by the rulings issued before the election, but there is still a lot of room for maneuvering. Given the massive mobilization of election lawyers on both sides, we can expect no legal stone to be left unturned. And we may also see lawsuits that are little more than press releases by disappointed candidates.

We’re now less than one week away from Election Day, which means the U.S. Postal Service-recommended deadline for mailing absentee ballots has passed.

However, most states allow you to drop off your ballot in person; check your state on our tracker on how to vote to find out where. For those of you who plan to vote in person, we also have links to state websites where you can look up your polling place.

Breaking: The Supreme Court will not block a legal settlement reached by the North Carolina State Board of Elections that extended the deadline for receiving absentee ballots from Nov. 6 to Nov. 12.

The court similarly declined to roll back Pennsylvania’s absentee-ballot deadline earlier today. This leaves just one major unresolved election-related court case we’re tracking: A Republican challenge to (you guessed it) the extended absentee-ballot deadline in Minnesota.

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.

Another day, another late-night court ruling. Just now, the Texas Supreme Court ruled in favor of Republican Gov. Greg Abbott’s executive order that counties may have only one ballot drop site each — reversing a lower court ruling that had said counties could set up multiple drop sites. Voting-rights advocates had been pushing for more drop sites in large counties like Harris and Travis, which are home to millions of people (many of them Democrats).

As Maya mentioned earlier, a big concern this year is that a large number of mail ballots will be thrown out because of issues with voters’ signatures. However, a federal judge is now preventing South Carolina from discounting any ballots solely because of perceived signature mismatches. State officials in Pennsylvania had also previously told counties that they could not throw out any ballots because of mismatched signatures.

Important to remember:

Patrick Houlihan from Arkadelphia, Arkansas: What are the most common reasons why a mail-in ballot is rejected? I’ve read that they can be rejected when a signature doesn’t match the official record; how far off does a signature have to be to cause a problem? Which states allow voters to correct mail-in ballots after they’ve been rejected?

Research suggests that the most common reasons a mail-in ballot is rejected are:

• The ballot wasn’t received by the deadline
• The signature is missing
• The signature doesn’t match

Signature matching is an infamously imprecise art, and there are no hard and fast rules to determine how “off” is too off. Earlier this month, the New York Times contacted election officials in every state that has a signature matching component to their vote verification process, and found that just six had statewide guidelines or training materials. (And the level of detail in statewide guidance differs dramatically.)

The decision to allow voters to correct, or cure, ballots also happens on a state-by-state basis. Eighteen states have laws on the books requiring that voters are notified of and given an opportunity to fix a missing signature or other signature discrepancy, ranging from states that conduct majority-mail elections, like Colorado and Washington, to states that conduct majority in-person elections, like Massachusetts and Georgia. Another three (Mississippi, New Jersey and Virginia) have passed laws creating some type of curing process for 2020.

Sean from California: What is the substantive legal argument being made to prevent the counting of ballots received after Election Day, even if they are postmarked by Election Day?

The issue isn’t that counting ballots received after Election Day is itself illegal — in California, for instance, the deadline to receive ballots, as long as they’re postmarked by Election Day, is Nov. 20. The legal question that’s being worked out in the courts right now is who gets to decide what the deadline should be: state legislatures, federal courts or state courts? The legal fights we’re seeing are the result of disagreements among state officials or between state officials and federal or state courts.

In Wisconsin, for instance, state law says that ballots must be received by 8 p.m. on Election Day in order to be counted. Democrats and other groups sued the state over that law, and a federal district court judge extended the deadline by six days. That ruling was then blocked by a federal appeals court, saying the decision amounted to judicial interference. And the Supreme Court eventually agreed, refusing to allow the trial court’s extension to go into effect.

In his concurring opinion, Chief Justice John Roberts said it was the fact that a federal court had intervened to change the deadline that made the difference in the Wisconsin case. Compare that to a similar battle in Pennsylvania, where it was the state Supreme Court that approved a ballot extension deadline under the state constitution. Roberts explained in his Wisconsin opinion that things are different when the question has to do with state courts’ authority to apply their own constitutions to election regulations. (Notably, the other four conservatives on the court seemed to disagree. The Pennsylvania case has returned to the Supreme Court, so Justice Amy Coney Barrett, who was just sworn in yesterday, could in theory cast a vote for a different outcome.)

A final case to watch: In North Carolina, the state Board of Elections and attorney general’s office have tried to extend the ballot deadline, over the objections of Republican lawmakers. The battle has been unfolding in state and federal court, and a federal appeals court recently upheld the new deadline. The question, of course, is whether the Supreme Court will agree.

There’s been a lot of buzz about attempts to restrict voting in Texas, but in Harris County, election officials are dealing with record-breaking turnout by expanding the opportunities to vote for people living in Houston and its suburbs.

For the rest of this week, Houstonians living in Harris County can vote at night – until 10 p.m. at the county’s 122 voting locations. The three extra hours extend through the end of early voting on Friday.

And if that’s not late enough, night-owl voters can cast their early ballots around the clock this Thursday at eight locations in the city, including a voting mega center at NRG Arena.

On Oct. 23, Harris County blew past the mark of 1 million votes cast. As of Monday, nearly 8 million Texans had already voted, with four more days of early voting to go. Just under 9 million Texans voted in the entire presidential election in 2016.

Some Houston-area voters said fears about legal wrangling, lack of access and mail-in ballot rejections drove them to vote early and in person.

“I certainly feel better doing it in person,” voter Daniel Brunmhoelzl told ABC13 in Houston on Monday. “The mail-in ballot, I’ve heard stories nationally, and so I just felt better doing it in person. I think that is the safest way.”

Corey Redmond from Austin, Texas: Can we get a FiveThirtyEight-made investigation into which places allow you to track/verify your vote across the U.S.?

Assuming you’re referring to mail votes, sure thing! At least 44 states plus Washington, D.C., now have online portals where you can track your absentee ballot. Unfortunately, though, Corey, your home state of Texas is one of the exceptions! The rest of you can find a link to your state’s portal by heading to our “How To Vote In 2020” page, clicking on your state and checking under the “Submitting an absentee ballot” section.

We just got an answer to one of our six “unresolved questions” from earlier. In a 5-3 ruling along ideological lines, the Supreme Court has upheld a lower court ruling that absentee ballots in Wisconsin must be received by Election Day, not just postmarked by then. Voting-rights groups had been fighting for a receipt date of Nov. 9.

Happy Monday! Only eight days remain until Election Day 2020 — and thanks to ongoing litigation, the exact rules of the election are still up in the air in a handful of states. Here are the major court cases yet to be resolved:

• Republicans are asking the U.S. Supreme Court to overturn a legal settlement reached by North Carolina to extend the absentee-ballot receipt deadline to Nov. 12.
• The Supreme Court already allowed Pennsylvania’s new absentee-ballot deadline (postmarked by Nov. 3, received by Nov. 6) to stand, but Republicans have initiated a new lawsuit against it — possibly with the goal of having the Supreme Court reconsider the matter after Amy Coney Barrett has been sworn in.
• Voting-rights groups are also asking the Supreme Court to allow Wisconsin to count ballots that arrive after Nov. 3 as long as they are postmarked by then.
• Republicans are appealing a court ruling that affirmed Minnesota’s new rule that absentee ballots can count if they’re received as late as Nov. 10 (assuming they’re postmarked by Nov. 3).
• The Texas Supreme Court is considering whether to overturn Republican Gov. Greg Abbott’s executive order that counties can have no more than one ballot drop site each.
• And New Orleans is suing the state of Louisiana to allow absentee ballots to be dropped off at sites other than local election offices.

We should get a final word on these questions very soon.

Apologies for interrupting everyone’s Saturday, but one quick update from Maine: It hasn’t been getting as much attention as other states, but there had also been a lawsuit pending in Maine to extend the deadline for absentee ballots to be received from Nov. 3 to Nov. 13. Late yesterday, however, the Maine Supreme Court upheld the state’s requirement that all ballots must be received by Election Day. That’s likely to be the final say on the matter.

One of the last unresolved election-law questions is over Texas Gov. Greg Abbott’s executive order that limited the number of absentee ballot dropoff sites to one per county. This afternoon, a state court upheld a lower court ruling that struck down the Republican governor’s order. However, this doesn’t necessarily mean large counties like Harris and Travis can now open as many drop sites as they want. The state is expected to quickly appeal this decision to the Texas Supreme Court.

Mississippi is one of only five states that are not allowing anyone who wants to vote by mail. But the state has reached an agreement with voting-rights groups to make voting a bit easier: Curbside voting will now be available for people with symptoms of COVID-19, and absentee voters will be allowed to fix problems with signatures on their ballots.

A couple of decisions out of Pennsylvania Friday and some not-great news for the Trump reelection campaign. First, the Commonwealth Court of Pennsylvania rejected a bid by the Trump campaign to have poll watchers at new satellite election offices in Philadelphia where voters can request and return mail-in ballots in person. The campaign had argued that the offices were operating as de facto polling places, but in a 2-1 decision, the court ruled to uphold an earlier rejection from a trial court. Meanwhile, in a unanimous decision, Pennsylvania’s Supreme Court ruled that counties cannot reject mail-in ballots solely due to a signature mismatch, a response to a lawsuit brought by voter-rights groups.

In New Jersey Thursday, another challenge from the Trump campaign seeking to stop the state’s mail-in ballot program was tossed out by a federal court judge.

Only three states don’t allow mail ballots to be returned in person: Missouri, Mississippi and Tennessee. A lawsuit sought to change that in Missouri, but Thursday a court ruling confirmed that, no, Missouri voters cannot drop off their mail ballots in person.

Earlier this week, the Supreme Court issued an order that seemed like a win for Democrats in the key swing state of Pennsylvania. The justices split 4-4 on a request from state Republican officials to block a Pennsylvania Supreme Court decision that allows for the counting of mail-in ballots that are received up to three days after Election Day.

Seems like that’s the end of that, right? Well…not really. The order from the Supreme Court justices wasn’t a ruling (there wasn’t even an explanation of their reasoning), and it didn’t uphold the state court decision. The justices merely split on the question of whether the state Supreme Court ruling should be blocked, which meant that the lower court’s ruling automatically stood. That leaves an opening for Republicans to bring the case back to the court when it once again has a full complement of nine justices — i.e., after Judge Amy Coney Barrett, who seems likely to be confirmed by the Senate early next week, is sworn in.

In fact, Pennsylvania Republicans resurrected their claim yesterday in a new case filed in federal court that they claim also raises new legal issues for the court to consider. Another lawsuit could also plausibly end up at the Supreme Court if the margin in Pennsylvania is close enough that whether late-arriving ballots are counted could decide the outcome.

It’s very possible, then, that the Supreme Court could be ruling again soon on the Pennsylvania mail-in ballot deadline. And with another solid conservative vote, the outcome could very well swing in the other direction.

A legal fight over whether counties can offer more than one ballot drop site still rages on in Texas, but one other state has finally settled the matter: Voting-rights groups suing Ohio over its rule that ballot drop boxes must be located only at county election offices have dropped their case.

We’ve gotten two high-profile Supreme Court orders on election-related issues in the past week — one from Pennsylvania and one from Alabama. In the Pennsylvania case, the court deadlocked 4-4, leaving in place a ruling from the Pennsylvania Supreme Court that allowed election officials to count some late-arriving mailed ballots. In the Alabama case, the order was 5-3, with the conservatives in the majority and the liberals dissenting, and as a result, Alabama state officials are now allowed to block counties from offering curbside voting.

This is in addition to a handful of other voting-related cases the Supreme Court has weighed in on since the pandemic began. With a few exceptions, the court has mostly ruled against loosening restrictions designed to make voting easier during the pandemic. That’s not exactly a surprise, given the conservative Roberts court’s record on voting rights — but what’s weird about all the rulings is how little information the justices have imparted about why they’re ruling in the way that they did.

Take the Pennsylvania case. The justices’ decision came down in the form of two brief unsigned orders, which merely listed the four justices who would have dissented. The Alabama case, meanwhile, included a dissent from Justice Sotomayor, which the other liberals joined, but there was radio silence from the five conservatives in the majority.

This isn’t abnormal behavior for emergency applications to the court in general. But as the election draws closer and more Americans cast their ballots, the lack of explanation is increasingly perplexing. Several election law experts have told me that the justices may be making lower court judges’ lives more difficult by not outlining why some restrictions have been upheld and others have fallen. In the absence of that guidance, appeals courts seem to mostly be defaulting to a more restrictive position.

There are a couple of cases still pending at the Supreme Court — one out of Wisconsin and one out of North Carolina. Of course, we will post an update here when those cases come down. But one thing we’ll be watching for, in addition to the outcomes of these cases, is whether the justices offer any more insight into how these momentous decisions are being made.

Nearly 48 million Americans have voted so far in the 2020 election, making up almost 35 percent of all votes cast in 2016. There has been an unprecedented level of early and mail voting, and this week on the FiveThirtyEight Politics podcast, we took stock of how voting has been going so far. Nathaniel Rakich and Amelia Thomson-DeVeaux talked to me about how voting rules have changed as a result of the pandemic, whether we are seeing any hiccups, and what kind of litigation pertaining to those rule changes is still ongoing. Give it a listen for an overview of the trends that we’ve been watching and will continue to track between now and Election Day.

Very jealous of this Vice News analysis. It finds that about 21,000 Election Day polling places will not be open this year — a 20 percent decrease from the 2016 election. The closure of in-person polling places was a big problem during the primaries this year, leading to long lines in places with the most severe consolidation — often cities and communities of color. The most famous example of this was the Wisconsin primary, when Milwaukee went from 180 polling places to just five and saw hours-long lines as a result.

However, the fact that many states are closing polling places doesn’t automatically mean there will be problems. A lot depends on the exact number of polling places being closed and where they are located (i.e., there is a strategic way to close polling places). Most states are closing fewer than 20 percent of polling places, and assuming those closures are efficiently spread out, that shouldn’t cause too many problems. Some states, like Maryland and Kentucky, will also have voting super centers in large sites like sports arenas that can process many voters at once — so even though there are fewer voting locations, the ones that remain should have higher capacities. And states like California, New Jersey and Vermont are consolidating many polling places but also switching to an all-mail election, so demand for in-person voting should be way down. States like Washington and Colorado that have voted by mail for years typically open only a handful of in-person voting locations and experience few problems.

Dylan Doherty from Hamtramck, Michigan: I understand that Democrats are more likely to vote absentee/mail-in, but why would that lead to a “red mirage”/”blue shift”? Are in-person ballots all counted first and then absentee ballots? Why would that be?

The short answer is that it depends on the state. But it’s true that some states may see a “blue shift” or “red mirage” based on how their votes are counted, because some will count Republican-leaning Election Day votes before many Democratic-leaning mail ballots. After all, we know that mail ballots will be disproportionately more Democratic — in 19 states where there’s party registration, around 51 percent of mail or in-person early votes have been cast by registered Democrats, compared with just about 26 percent by Republicans, based on data from Michael McDonald at the University of Florida. However, the count pattern will vary from state to state, and some could initially have more Democratic-leaning results that then trend Republican.

Pennsylvania is a battleground state that might see a notable shift in a Democratic direction, in part because election officials cannot begin processing mail ballots until the morning of Election Day. As such, we can probably expect most Election Day votes to be counted that night, but we can’t know for sure how many mail ballots will have been tallied. A large number of mail ballots will have already been returned, which could help officials get into a position to count a sizable share of them. But the vote count was very slow in some parts of the state during the June presidential primary, and even with that experience under their belt, election officials will have far more ballots to count in the general election. And there’s little question that mail ballots are going to lean heavily toward Biden, as recent Pennsylvania polls have shown that around three-fourths of voters who plan to vote by mail or who have already voted back Biden.

However, other states could actually see a “red shift” as their counts wear on. Florida begins processing mail ballots 22 days before the election, and state law requires county election officials to report all tabulated early and mail ballots within 30 minutes of polls closing, which is 7 p.m. Eastern in most of the state. So the early rush to send in mail ballots this year could mean that a huge Democratic-leaning tranche of ballots will be reported fairly early on Election Night and ahead of many Republican-leaning Election Day ballots. The final result could then come down to whether a Democratic lead will hold up, instead of a Republican one like in some other states.

On Wednesday, Iowa’s state Supreme Court upheld a Republican-backed law that prevents county elections commissioners from filling in missing information on absentee ballot request forms using voter registration data. Instead, commissioners must contact voters to fix the forms themselves. It’s the latest Republican victory in the state after a previous ruling invalidated tens of thousands of ballot request forms that had been sent to voters with their information already filled in, deciding that those applications should have been sent to voters blank.

A.S. from New Jersey: Have you considered factors such as rejected absentee ballots (which would affect Democrats more because they’re more likely to use those) in your probability estimations?

No, our model doesn’t attempt to account for anything that happens after ballots are cast, such as mail ballots being rejected or Trump successfully challenging the outcome of the election. We’re not trying to dismiss these concerns; they’re just outside the scope of a statistical analysis. Things like human error or the whims of the president can’t be modeled!

If you’re interested in reading more about rejected ballots, I humbly recommend this article I wrote last week. It’s certainly concerning for democracy that hundreds of thousands of otherwise eligible voters will probably see their ballots invalidated this year; however, I would be surprised if it actually affected the outcome of the election. First of all, only 30-40 percent of ballots are expected to be cast by mail this year. Second, only about 1 percent of mail ballots are rejected. That means an election would have to be within 0.3 or 0.4 percentage points for rejected mail ballots to be decisive. And even in that case, it’s not as if all mail ballots are cast for Democrats. So even a Democratic lead of 0.3 or 0.4 points probably wouldn’t be erased (just narrowed) by rejected mail ballots.

Of course, this is a very rough, hypothetical example. In some states there will be a lot more than 30 percent of votes cast by mail. Furthermore, the rejection rate could be higher this year because so many people are voting by mail for the first time and are unfamiliar with the rules (although experts are optimistic that this will be mitigated by states extending their ballot-receipt deadlines, allowing voters to fix mistakes on their ballot and making ballot instructions clearer). So we can’t totally rule out rejected ballots being decisive in a hyper-close race. I just think it’s unlikely.

Another election-related order came down from the Supreme Court on Wednesday evening. By a 5-3 vote, with conservatives in the majority and liberals dissenting, the court blocked a district court judge’s ruling that kept Alabama state officials from preventing counties in the state from providing curbside voting, a measure designed specifically to help voters with disabilities or those at risk of catching COVID-19 who were uncomfortable waiting with other voters in an indoor space. A few counties had wanted to implement the measure, which would allow people to vote from their cars or hand their ballot to a poll worker at curbside. The district court’s order would have permitted (but not required) counties to provide the service over the objections of the state.

The Supreme Court didn’t explain its reasoning in siding with Alabama state officials. But the liberal justices did sign onto a dissent authored by Justice Sonia Sotomayor. She wrote that the court didn’t have a good reason to stand in the way of counties trying to make voting easier for elderly or disabled people. “If those vulnerable voters wish to vote in person, they must wait inside, for as long as it takes, in a crowd of fellow voters whom Alabama does not require to wear face coverings,” she wrote. “The District Court’s modest injunction is a reasonable accommodation, given the short time before the election.”

In the past couple of weeks, a number of states like Florida, North Carolina and Pennsylvania have seen huge upticks in voter registration numbers. Geoffrey, you wrote something on this recently. Tell me, what’s happening? Are more Republicans registering in a state like Florida?

Geoffrey: At first glance, the answer is yes. More Republicans are registering to vote in a state like Florida. Since the deadline to register for Florida’s March presidential primary, Republicans have registered about 147,000 more voters than Democrats have, and the share of Republican registrants has ticked up.

However, this is complicated by the fact that: 1) more Democrats registered in the months before the presidential primary because they were more engaged by the competitive Democratic nomination contest than Republicans were; and 2) many voters who register as independent tend to be younger, and we know that those voters are more likely to vote Democratic, even if they don’t identify openly that way.

Moreover, party identification can be a lagging indicator of who a person supports — meaning someone may have previously supported the party they’re switching their party registration to now.

So … the long answer is that we can’t actually know whether more Republican voters registered than Democratic ones!

Kaleigh: I’ve also seen a lot of reporting about Republicans “closing the gap” in states like Pennsylvania, but what they’ve really done is narrowed the gap. There are still currently 700,853 more Democrats than Republicans registered in Pennsylvania.

Nathaniel: Yeah, I wouldn’t put much stock in those registration numbers if you’re trying to understand how the election might swing. The polls are just a much more direct way to answer that question — they ask directly who a person supports instead of depending on an unreliable proxy for it like registration.

And the polls are designed to pick up all voters — new and old!

Geoffrey: That’s right, Nathaniel. You might even say that voter registration numbers are a Rorschach test of sorts — you can sort of make what you want of them, especially with the increasing number of voters who register as independent, which makes it even harder to draw big conclusions from these numbers.

Kaleigh: Earlier this year, Nathaniel and I reported on how the pandemic had taken a huge toll on new voter registrations. At the beginning of the year, we were on track to see a record number of new voters registering, but with lockdowns (and, in particular, the closure of DMVs), those new registration numbers plummeted:

David Becker of the Center for Election Innovation & Research, who was one of our sources, recently told NPR they’re seeing a bit of a rebound but “[I]t’s not making up for all of the activity that we’ve lost due to the pandemic.”

Nathaniel: Yeah, and new registrations are really a drop in the bucket compared to existing registrations. So even if a majority of new registrants are voting for Trump, if existing registrants strongly support Biden, it wouldn’t matter.

Sarah: OK, between early voting data and voter registration numbers … how should I be factoring this into how I think about the election?

Is it an indication that voter turnout/enthusiasm might be high? Or should I disregard this?

Geoffrey: Look to the polls. First, they show that Biden is generally doing better than Trump among people who identify as independent. So, even if the GOP has added more voters, a Biden edge among independents could override that.

Second, for turnout I’d look to polls about enthusiasm and interest. For instance, Gallup found in late September that 71 percent of registered voters said they were more enthusiastic about voting in 2020 than in past elections — the highest percentage since Gallup started asking this question in 1996.

On Tuesday night, a federal appeals court voted 12-3 to deny a request from North Carolina Republicans, who wanted the court to impose an emergency stay on a state voting rule allowing state officials to count ballots that are postmarked by Election Day and received up to nine days later. However, this may not be the last we’ve heard of this case. The three dissenting judges — none of whom, notably, were Trump’s recent appointees to this appellate court — urged the GOP officials who had asked for the stay to take the case to the Supreme Court “immediately.”

Jason from Fort Lauderdale, Florida: How many states are allowed to open and prepare ballots before Election Day? Have there been any recent changes related to this in any swing states?

There are only eight states that require ballot processing to begin on Election Day this year. Of those, two are swing states: Pennsylvania and Wisconsin. The remaining states, plus Washington, D.C., allow processing to begin earlier, ranging from the day a ballot is received to Nov. 2.

Nine of these 42 states changed their guidelines for 2020 to allow for more time to process ballots, including potential swing states like Iowa, Michigan, Minnesota and New Hampshire. I’d also add Arizona, which passed a law in 2019 allowing counties to start counting early ballots up to two weeks ahead of Election Day (previously, counties could start only one week before).

Here’s where the caveats come in: First, “processing” a ballot means different things in different states. In some jurisdictions, officials can only check voter signatures; in others, they’re allowed to check signatures, open ballots and prepare them for tabulation. Second, some states have limitations on the types of ballots that can be processed early. In Michigan, for example, only cities with at least 25,000 residents can start pre-processing ballots on Nov. 2 (and according to the Detroit Free Press, not all of the qualifying cities intend to do so). So while we can expect many of these states to make some headway before Election Day, it’s hard to know how much of the pre-Election Day vote will be counted on Nov. 3.

Dave Peterson from Milford, Connecticut: Does the Supreme Court decision for South Carolina requiring witness signatures on envelopes also now apply to Connecticut and other states?

Good question, Dave, but no. As you alluded to, the Supreme Court overrode a lower court ruling and reinstated South Carolina’s requirement that absentee ballots be signed by a witness — but it didn’t impose that rule nationwide. As Maya mentioned here the other day, each state sets its own election laws, and most states do not require anyone other than you to sign your absentee ballot. The states that do require witness signatures are Alabama, Louisiana, North Carolina, South Carolina and Wisconsin. In addition, Alaska, Minnesota, Rhode Island and Virginia normally require witness signatures, but either the state waived that rule due to the pandemic or a court struck it down.

The Washington Post is reporting that at least 33 million Americans have already voted nationally with two weeks to go until Election Day. This amounts to 70 percent of the total number of early votes cast in 2016. Of course, the surge in early voting isn’t a surprise, considering the COVID-19 pandemic has encouraged voters to avoid lines on Election Day and states have expanded early voting availability. Nonetheless, these are historic figures. But as the Post’s analysis cautions, the early vote alone can’t tell us whether there’ll be record-setting overall turnout once all the votes are counted.

Last night, the U.S. Supreme Court finally weighed in on a dispute that’s been at their doorstep for quite some time, and declined a request from Pennsylvania Republicans to halt a Pennsylvania Supreme Court ruling that allowed some mail-in ballots to be counted up to three days after Election Day. The outcome was the result of a 4-4 deadlock on the court with Chief Justice Roberts siding with the three liberal justices, since Justices Alito, Thomas, Gorsuch, and Kavanaugh all noted in the order that they would have granted the stay.

On an immediate level, this means that the extended deadline stands, and more delays in reporting election results in Pennsylvania are likely. But the divided nature of the order also emphasizes just how important the impending confirmation of Judge Barrett could be for future voting rights rulings. It’s very unusual for the U.S. Supreme Court to overrule a state Supreme Court when interpreting its own state constitution (which was the issue in the Pennsylvania case), and the justices in this case didn’t offer any reasoning for their votes. But if Barrett is confirmed, she could be the decisive vote in future disputes along these lines.