How Wisconsin’s slowed-down mail could decide the electionBobbie Johnsonon October 27, 2020 at 9:07 pm

If elections are a technology, then the machine consists of an enormous sprawl of moving parts that goes well beyond what most people realize. The system usually has lots of problems, but things have become so unpredictable during the covid-19 pandemic that the failure or success of any one piece of that greater machine could have an outsized impact on the entire election.

Consider the US Postal Service in Wisconsin.

Wisconsin is a state that Donald Trump probably needs to win if he’s going to get a second term. The state’s 10 electoral college votes went to Trump in 2016 by a slim margin—just 22,748 votes out of a voting population of around 4 million. In 2012, Barack Obama won Wisconsin by about 200,000 votes. It’s a key swing state in 2020, and the stakes are high.

Like the rest of the country, the pandemic has driven a record number of voters in Wisconsin to cast ballots by mail. But Wisconsin has another serious problem to contend with: Mail delivery speeds have dropped precipitously. In September, it took an average of 10 days for a first-class letter to be delivered in the state, according to the Wall Street Journal. It’s true that mail delivery times have risen across the country—a problem that began after former Republican fundraiser Louis DeJoy took over as Postmaster General and rolled out major changes—but Wisconsin’s slowdown is one of the nation’s most dramatic postal failures.

Over 1 million Wisconsinites have already returned mail-in ballots, according to the US Election Project, and a further 700,000 more have been requested but not yet returned. We are now one week from Election Day, and mail delivery speeds mean it may already be too late for many citizens to return their ballot by mail—unless the state counts votes that were sent and postmarked before Election Day but received afterwards.

That’s why a legal battle over Wisconsin’s mail-in ballots went all the way to the US Supreme Court. 

The Supreme Court case

Today, more than a dozen states allow mail-in ballots to be counted if they arrive after Election Day, as long as they were sent on time and have the postmark to prove it.

But that’s not been the case in Wisconsin, where Democrats and civil rights groups have been fighting state Republicans over the issue through the courts. Last month, a federal district court instituted a six-day grace period of vote counting to allow for the postal delays. That was then overridden by judges on the Seventh Circuit.

The back and forth landed in the US Supreme Court, which on Monday ruled 5-3 rejecting the extension. The ruling came down along ideological lines: All the justices appointed by Republicans sided with the Republican Party, the Democrat-appointed judges sided with Democrats. The decision was made just before Amy Coney Barrett was sworn in as the court’s newest justice on Monday night.

In his opinion on the case, Justice Brett Kavanaugh argued that it is too close to the election to change any rules, and he focused on the importance of strict election deadlines and raised the specter of “chaos” if the Democrats won this case.

“Voters who, for example, show up to vote at midnight after the polls close on election night do not have a right to demand that the State nonetheless count their votes,” he wrote (PDF). Later on, he argued that “those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

Kavanaugh’s opinion foreshadows what might come from potential legal battles after November 3rd. 

Fractious times

The results that come in on Election Day are never definitive announcements, they are projections based on incoming results and exit polls. Official, certified results often take days or weeks to arrive, and that has long been the case. Justice Elena Kagan dissented from Kavanaugh’s line for this reason: “There are no results to ‘flip’ until all valid votes are counted,” she wrote. “To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”

But the notion of illegitimate votes echoes the disinformation campaign about mail-in ballots that President Donald Trump has been running for months.

Just minutes after the Supreme Court’s decision, Trump doubled down and tweeted out: “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.” The tweet was quickly flagged by Twitter as “disputed and might be misleading.”

The time taken to verify mail-in votes is not not a result of “problems and discrepancies,” but simply a function of how mail-in vote ballots are cast, sent, received, and counted. That’s as true for a Wisconsin citizen in Milwaukee as it is for a citizen in the military serving overseas. 

If the results of the presidential election are close and there are legal disputes in states like Wisconsin, these sorts of issues could easily end up being put in front of the Supreme Court in the next few months. Such decisions can have outsized impact: the 2000 presidential election, for example, was effectively decided after a legal fight over a few hundred votes in a single state.

There are nearly three months between Election Day and the presidential inauguration to count all the votes. The claim that six extra days to account for a postal service debacle would throw the election into “chaos” might disenfranchise thousands of voters in Wisconsin through no fault of their own.

This is a failure of the election machine in a way that just one year ago might have seemed relatively inconsequential, not to mention inconceivable. In 2020, it could plausibly decide the entire presidential election. 

This is an excerpt from The Outcome, our daily email on election integrity and security. Click here to get regular updates straight to your inbox.

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