Originally published in The Washington Post | July 10, 2020
Evidence from some primaries this year offers real cause for concern. It is clear that voting by mail and absentee balloting will increase significantly, with much of that increase coming in states unaccustomed to handling these processes at scale. It may be impossible to call many races, including the presidential contest, on election night. And daunting logistical challenges may well raise questions about the legitimacy of the outcome.
There is no easy way to avert such problems. The management of elections inherently raises concerns about politicization, with each party worrying that the other will try to manipulate the rules to gain advantage. We have been involved in Democratic and Republican politics, respectively, and we know electoral reforms don’t come easy.
But there are two kinds of steps that responsible leaders could take now to at least contain the danger without falling into partisan combat. The first is simply to speak to the problem in public. Elected officials and candidates — as well as journalists, commentators, scholars and others — should talk frankly about the challenges of running an election during a public health crisis, prepare the public for the possibility that we will not have results on election night, and that this does not mean that the results will be tainted when we do get them. Election officials must be given the time they need to count every vote.
Second, Congress can take a simple step to provide those officials with that time, particularly when it comes to the presidential election. Election Day, Nov. 3, should not be changed. But electing our president involves a series of steps following that day, which take place on a schedule established by law, not by the Constitution, and which Congress can adjust for this year’s special circumstances.
The first significant date on that schedule marks the end of the “safe harbor” period established by federal law, during which states are assured their reported presidential election results will not be challenged in Congress. This year that deadline is Dec. 8. Six days later, on Dec. 14, the 538 members of the electoral college meet in their state capitals to vote. Those votes are not officially tallied by Congress until three weeks after that, on Jan. 6, and the inauguration follows on Jan. 20.
That means 78 days pass between the election and inauguration, but states have only 35 of those days to process all the ballots and resolve all disputes and recounts — or 41 days if they forgo their safe-harbor protections.
If states confront serious logistical challenges, those 35 days could easily prove inadequate. Mailed ballots require signature verification, contacting voters whose handwriting is challenged and time for voters to respond. Some states already have efficient systems in place, including automated signature matching, but those procedures have been carefully built over several years. Other states are now trying to quickly set up new processes, equipment and training, and, inevitably, there will be problems and delays.
It is not hard to imagine time running out in a closely contested state facing these challenges. In 2000, for instance, the Supreme Court heard arguments in Bush v. Gore on Dec. 11, one day before the safe-harbor deadline, and the decision to end the recount was based in part on that deadline.
Changing the calendar after the election would be very difficult, because at that point various partisans looking at available results would have different views about who would benefit from an extension. But now, before anyone has voted, we can all agree that more time could help without giving one party an advantage over the other.
The specific calendar should be established by Congress, but it might be reasonable to have the electors meet on Jan. 2, after a safe-harbor deadline on New Year’s Eve. Even if the results remained unclear until well into December, state officials would have much more breathing room as transition preparations for both would-be presidents could commence.
We can hope that the election is not too close, one way or another, or that the logistics all run smoothly. But hope is not a strategy, and 2020 has not been a great year for just assuming the best. It would be a disaster if the outcome of the presidential election turned on an incomplete recount in a state struggling with unprecedented public health and administrative challenges under a deadline.
There are not many ways to avoid such a scenario in advance without sparking a partisan war. But there are a few ways, and Congress should pursue them.
Kevin Johnson is executive director of Election Reformers Network. Yuval Levin is director of social, cultural and constitutional studies at the American Enterprise Institute.