Editor’s Note: Josh Silver is the executive director of RepresentUs, a non-profit working to stop corruption in American politics. He is a long-time election and media reform executive who speaks nationally on democracy and issues of money in politics. The views expressed in this commentary are his own. View more opinion on CNN.
This year, as a result of the pandemic, we will likely see a dramatic increase in absentee voting, but some states will not verify or count those ballots before Election Day. This delay could be a major problem for American democracy, sowing doubt in the results and distrust in our electoral process.
The primary season has already highlighted this risk. Following its June primary, New York did not count absentee ballots quickly, and voters waited weeks to find out who won key state legislature and congressional races. By the time results were announced, two candidates and several voters had filed a lawsuit against the state, President Donald Trump had falsely pointed to the delay as evidence that mail-in voting is fraudulent and state lawmakers had held a hearing about what had gone wrong.
There are a number of reasons New York’s primaries went haywire, but one of the key issues was a time crunch: Under state law, election officials could not begin processing and counting absentee ballots until after Election Day.
Getting absentee ballots ready to be counted takes time. Elections officials call this the “inbound ballot process,” which includes tasks such as verifying signatures, opening envelopes and preparing ballots for machine scanning. Processing, whenever it takes place, allows the votes to be counted efficiently and securely.
Facing the prospect of delayed general election results, New York Gov. Andrew Cuomo issued an executive order last week to allow for the review of absentee ballot envelopes before Election Day, in order to quickly begin counting after polls close. That was a good start, but the other states in similar positions to New York need to take action as well – processing, or ideally processing and counting, ballots before Nov. 3.
These states include the presidential battleground states of Pennsylvania, Michigan and Wisconsin, which do not process or count absentee ballots before Election Day. At RepresentUs, we put together a Ballot Counting Scorecard that shows how far behind several of these states may be – and while the process does not appear partisan, the inconsistencies in rules across states is a recipe for disaster this fall.
The good news is there’s a template for addressing the issue. Seventeen states process and count in advance of Election Day. And they do so securely and efficiently, as we see in examples like Florida (which begins 22 days before election), Colorado (which begins 15 days before) and Oregon (which begins seven days before). These states have rigorous oversight, and laws forbidding the disclosure of the results – in some cases making it a crime to divulge the tallies.
While there are only two months left before Election Day, legislatures still have time to act. Michigan lawmakers are considering SB757, which would allow early processing, but not counting, of ballots. And, in Pennsylvania, the governor and the legislature are in talks to allow for early pre-canvassing of ballots, which means the inspection and verification of ballots prior to counting. There is no excuse for these bodies not to pass these urgent reforms.
We must tally ballots in a timely manner for reasons that have nothing to do with satisfying our own impatience. It is plausible that we could see one candidate leading the early returns on election night, and then watch that lead evaporate once absentee ballots are counted.
We have examples of this happening, such as Democratic Arizona Sen. Kyrsten Sinema’s 2018 victory over Republican Martha McSally, who was ahead right after the polls closed. When the final votes showed Sinema had won, Trump tweeted that the result was “electoral corruption.” It is not, but to avoid the same problem this time around, Arizona has since changed its laws to allow ballot counting two weeks in advance.
Our current situation is ripe for a disputed election, even while a solution – allowing states to process and count ballots before Election Day – is in plain sight. It doesn’t help that the President continues to sow doubt about voting by mail, even as he himself votes absentee, or that Biden voters are more likely to vote by mail.
We may not be able to prevent all bad actors from interfering with a free and fair election. And we cannot guarantee that full results will be known by the end of Election Day. But we can protect voter trust from eroding even further by efficiently preparing and counting ballots in every state to ensure results as quickly as possible.