What should we expect on Election Day and beyond? To learn about unprecedented things that may happen in the presidential election, GLG spoke with Josh Douglas, Professor of Law at the University of Kentucky J. David Rosenberg College of Law, who teaches and researches election law and voting rights, civil procedure, constitutional law, and judicial decision-making. Following are a few select excerpts from our broader discussion.
[Ed Note: This Q&A was conducted before President Donald Trump revealed his coronavirus diagnosis. Stay tuned for a follow-up article about potential consequences of Trump’s condition on the election.]
In the buildup to the election, what role have state and federal courts played thus far? What role do you expect them to play up until Election Day?
There’ve been tons of lawsuits — more than 250 just about the election and COVID-related issues. This is more than we’ve ever had, both in state and federal court. And we’ve had tons of rulings with respect to things like mail-in balloting and its various rules. We’ve seen courts extend the dates by which a ballot can be returned. We’ve had litigation in terms of ballot drop boxes, and the number of drop boxes that a jurisdiction has and can have. We’ve seen litigation in terms of whether states should expand the ability to vote by mail.
We’re now down to five states that will not allow anyone to vote via absentee ballot, just based on a COVID-19 concern. There’s been litigation in all of those states to try to get courts to require an expansion of mail-in balloting. There have been challenges with respect to third parties on the ballot, and whether third parties should be allowed to appear.
So, the courts have been very involved. It’s almost difficult to keep track of all that is occurring all over the country. Election law is a burgeoning field with lots of disputes brought by both sides. Both Democrats and Republicans have been active. As I like to say these days, planning for and executing litigation is now a routine part of campaign strategy.
But after November 3, courts would be involved only if we have a close election. Now, every election cycle we tend to have at least one election somewhere going into a recount situation. That might be a local city council, school board, or state legislative seat. It’s much rarer to have the presidential election essentially going into overtime. But that’s where courts could become involved after November 3.
What challenges do you expect to see with mail-in voting? What are the mechanisms available to resolve disputes should there be one around mail-in ballots?
Should there be a dispute about any of these, it would occur only if one of the key states is close. If an election is close, we could see a few different avenues for challenges specifically to the mail-in balloting situation. One is signature matches. All states verify mail-in ballots, or absentees as they’re called in some places, through matching the signature on the ballot envelope with what’s on file when the individual registered to vote or at the DMV. That’ll be one place ripe for challenge. A number of ballots may look like they’re going to be rejected. They’re set aside and then the other candidate might challenge and say, “These need to be counted because the signatures do match,” or they may say the voters need to have an opportunity to cure the problem, to provide an updated signature or provide some other mechanism to verify their ballot.
Another potential dispute could be ballots that arrive late. Every state has a timing requirement in terms of whether the ballot must be in by November 3 or whether it just has to be postmarked by Election Day. So, say that a state has a postmark requirement of November 3, but a bunch of ballots arrive without a postmark. Or imagine there’s a deadline for ballots to arrive, but for whatever reason, the Postal Service is slow, and a big pile of ballots comes in the day after. The candidate who’s down in the count in that state will try to challenge the law and say, “Three days wasn’t enough. We need to challenge this, and it’s unfair to throw out the ballots because the Postal Service was closed.”
How should we think about mistakes made by a voter versus one made by the USPS or an election administrator? For example, in New York, people received mismarked ballots.
A lawsuit about something like that would likely involve the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, which, in general terms, requires voters to be treated equally and for everyone to have an equal opportunity to vote. Lower courts have made a distinction between mistakes made by voters and mistakes made by election administrators.
There was a series of earlier cases from Ohio involving ballots that had an issue, such as the voter’s name wasn’t on the registration roll, they didn’t have the right ID, or they went to the wrong precinct. In one case, voters showed up to a single polling place in Ohio that had multiple precincts but were directed to the wrong table. The court ruled that when it was clear the election administrator sent the voter to the wrong table and were told to cast a provisional ballot, the ballots couldn’t be thrown away. But the court also said that if the voter shows up to the wrong polling place, it’s the voter’s fault. At least in that case, the court made a clear distinction between mistakes made by election administrators as compared with the voters themselves.
That suggests that in the New York situation, where it’s clearly the election administrator’s fault for mislabeling the ballots, a court could rule in a similar way. That said, election officials are fixing that specific problem by issuing new ballots.
What should we make of the Trump campaign’s encouragement of its supporters to join what they describe as an “election security operation” at polls?
Most states allow a certain number of representatives from each major political party to be poll watchers. Others cannot be in the polling place to observe — it’s illegal under most states’ laws to be inside the polling place if a person isn’t an election official or there to vote. Federal law also makes it a crime for anyone to intimidate someone while voting, and it makes it a crime for there to be any armed officers at the polls. The president is encouraging what could amount to illegal activity if people who are not there to vote themselves and are not certified poll watchers in the state are showing up. In addition, it is a federal crime to intimidate or harass someone while they’re voting.
Have you seen anything with respect to how the primaries were administered that gives you cause for concern as we head into November?
Besides the rejected ballots issue I mentioned, I am concerned about long lines if people wait until November 3 to vote, because we’ll have social distancing. The lines might feel longer because people are spread out. The process might take a little bit longer if we’re sanitizing all the voting equipment between each voter, which many states are planning to do.
Another interesting lesson that is different from the primaries is that public health officials are saying that it’s okay to show up in person, especially for early voting, if individuals are able to vote in person. Many of us now are a lot more comfortable going to a supermarket than we were in April because we understand more about wearing masks and social distancing. Voting is a similar thing where you’re quick in and out, so I suspect that we’ll have a lot earlier voting than we did in the primary.
What are the key takeaways that you would like our audience to keep in mind as we progress in election season?
One thing is that, in terms of voters, people should make a plan and vote early if they can, whether it’s in person or by mail. The earlier we have ballots in, the earlier the process can begin. In terms of election night, the likelihood is we won’t know the winner of the presidential election. It won’t surprise me if we don’t have a winner within a week or so.
We need to demand that candidates don’t declare the win prematurely, that they wait for the process to work out. Changing vote totals is not an indication of fraud. The election officials on the ground are dedicated to getting this right, and so we need to let them do their jobs and look for actual evidence of fraud when allegations are made, because virtually always, it’s much more often a mistake by election administrators.
About Josh Douglas
Professor Joshua A. Douglas teaches and researches election law and voting rights, civil procedure, constitutional law, and judicial decision-making. His most recent legal scholarship focuses on the constitutional right to vote, with an emphasis on state constitutions, as well as the various laws, rules, and judicial decisions impacting election administration. He has also written extensively on election law procedure. He is the author of the book Vote for US: How to Take Back Our Elections and Change the Future of Voting. Professor Douglas has published in top journals, including the Georgetown Law Journal, Penn Law Review Online, Vanderbilt Law Review, Washington University Law Review, George Washington Law Review, William & Mary Law Review, Indiana Law Journal, and the Election Law Journal.
This article is adapted from the October 1, 2020, GLG teleconference “The U.S. Presidential Election: Potential Unprecedented Scenarios.” If you would like access to this video panel or would like to speak with Josh Douglas, or any of our more than 700,000 experts, contact us.