Congress can and should take some actions that would rein in the worst of the problems causing the absurdly slow ballot counting in six western states.
Most directly, Congress could insist that “Election Day” really means (with limited exceptions) a single day, not two or three months, of voting. Congress has the constitutional authority to do so, while the cause of good government demands it.
THE TRUMP DELUSION HAS FINALLY STARTED WEARING OFF
As longtime conservative columnist and author John Fund explains in his new book, Our Broken Elections, the growing use of widespread early voting, especially by mail, is an invitation both to electoral shenanigans and to sheer inefficiency. “We shouldn’t have ‘election-more-than-a-month’ before Election Day and ‘election month’ after the election as well,” Fund told me.
And as Fund wrote in National Review Online on Nov. 13, “Even if nothing inappropriate happens, the confusion and lack of security surrounding mail-in ballots generate suspicions of monkey business, especially in skin-tight races, as in both of these states.” Meanwhile, for states such as Arizona, Nevada, and Washington to take nearly a week to count ballots, while California regularly takes up to a month to do so, erodes public trust while hobbling Congress’s ability to organize for its next session.
In presidential election years, it means that tight races such as Bush vs. Gore in 2000 and Trump vs. Biden in 2020 leave results in doubt so long that presidential transitions are either haphazard or delayed or both. The United States has been lucky to not be faced with an international crisis in the earliest days of a new presidency, but if it were, a bungled presidential transition could have deadly real-world consequences.
Voting too early also can lead to practical problems, although perhaps not as deadly. Early votes can’t take into account developments or information (scandals, a candidate’s sudden health problems, or world events that suddenly make new issues more salient), thus leading to anomalous results.
Congress ought to fix all this, even while honoring the principle of federalism by leaving plenty of leeway to state customs. The Constitution says that states have primary responsibility for the “times, places, and manner of holding elections,” but, “Congress may at any time by law make or alter such regulations.” For presidential elections, Congress’s authority is even clearer, because the Constitution says “Congress may determine the time of choosing the Electors.” And the reality is that states are not likely to set up different procedures for presidential election years than they do for federal midterm elections. So if Congress prescribes some rules for the former, they likely will apply to the midterm elections as well.
Way back in 1875, Congress used its power to set a uniform federal Election Day, namely the first Tuesday after the first Monday in November. There is every good reason for Congress, as part of prescribing an Election Day, to also regulate how far in advance of that day, or after that day, that votes can be accepted.
Columnist Deroy Murdock lists a series of provisions that would strongly limit mass early voting while making Election Day itself the focus it should be. Yet even for those who in the name of state prerogatives would prefer a bit more local leeway, there’s no reason Congress shouldn’t pass a law reading in its entirety (other than implementing clauses) as follows:
“No ballot for federal elections shall be requested or accepted more than 14 days before national Election Day; and no ballot, with the exception of those submitted by U.S. armed forces or other governmental personnel and their immediate families who are officially stationed abroad on government business (as provided by law), shall be accepted by mail or by other means after the official close of the polls in each state on Election Day. Ballots postmarked (or placed in official drop boxes) but not received by state authorities by such poll-closing deadlines shall not be accepted as valid. Furthermore, states must make provisions to count all votes cast (pending legal challenges) by 48 hours after polls close in each state, the time of which shall not be later than 11:59 p.m. on the congressionally established Election Day.”
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In other words: Limit early voting, get votes in the hands of election officials by Election Day, and count all votes within two days. If Florida, the nation’s third-most-populous state, enjoys a high turnout and gets all its votes counted on the very night of the election, there’s no reason the rest of the states can’t do the same.
