ATLANTA — With broad new voting rules now made law, elections will never be the same in Georgia. The changes will be felt by millions of voters, potentially with enough impact to alter the results of close elections in a sharply divided state. Absentee voters — there were 1.3 million in November's presidential election — will face new ID requirements to submit their driver's license or state ID number, a small step for many but a difficulty for the three percent of voters who lack that ID. To return absentee ballots, many will have to rely on the Postal Service to deliver them on time since drop boxes wi...
Election experts and other critics of voter suppression responded with alarm Tuesday after the United States Postal Service failed to meet a court-ordered afternoon deadline to conduct sweeps at mail processing facilities to "ensure that no ballots have been held up and that any identified ballots are immediately sent out for delivery."
Earlier Tuesday, U.S. District Judge Emmet Sullivan of the District of Columbia had ordered the sweeps between 12:30 pm and 3:00 pm ET, and set a 4:30 pm ET deadline for facilities to file a status update. John Kruzel, a reporter at The Hill, tweeted Tuesday afternoon that the USPS failed to comply, in spite of saying this week that about 300,000 ballots had entered the mail sorting system but lacked a delivery scan.
In response to Kruzel's long tweet thread, Rep. Bill Pascrell Jr. (D-N.J.) took aim at the postmaster general, tweeting: "Haul Louis DeJoy in front of a criminal grand jury."
Journalist Ari Berman, who has extensively covered voting rights in the United States, similarly declared that "Louis DeJoy should be held in contempt of court and face criminal charges for obstructing an election if these ballots are not delivered on time."
Berman noted that mail delays have gotten worse in the lead-up to Election Day. For months, voting rights advocates have slammed DeJoy—a GOP megadonor who took over the Postal Service earlier this year—for forcing mail operations changes that critics charge were intended in part to sabotage the November election.
Stephen Wolf, a staff writer at Daily Kos Elections, also took to Twitter to highlight the missed deadline and the Washington Post reporting that Berman shared about how USPS ballot processing has slowed down in recent days. Wolf alleged "intentional sabotage by the Trump administration."
As Common Dreams reported earlier Tuesday, in response to a motion filed by the NAACP, Sullivan ordered sweeps at various facilities including some in seven battleground states—Arizona, Florida, Georgia, Maine, Michigan, New Hampshire, and Wisconsin—which don't allow ballots that arrive after November 3 to be counted.
Kruzel shared a statement from USPS claiming it was not possible to comply with the court order because of the number of inspectors at facilities:
...and would take them away from their other pressing Election Mail- related responsibilities, as detailed above."… https://t.co/BTzkeExnJC— John Kruzel (@John Kruzel)1604439661.0
According to Bloomberg, the Postal Service told the judge that "defendants were unable to accelerate the daily review process to run from 12:30 pm to 3:00 pm without significantly disrupting preexisting activities on the day of the election, something which defendants did not understand the court to invite or require."
Meanwhile, election law and voting rights experts and advocates issued accusations of disenfranchisement.
"This is very concerning and shows why a 'received by' deadline just makes no sense and improperly disenfranchises voters," Josh Douglas, a professor at the University of Kentucky Rosenberg College of Law, said of USPS missing the Tuesday deadline.
Eric Klinenberg, a social science professor and director of New York University's Institute for Public Knowledge, concurred. "This is how you deny citizens the franchise and steal an election," he said. "Also, it's how we all thought they would do it. It's what they said they wouldn't do. And it's exactly what they are doing."
Michael McDonald, the University of Florida professor behind the U.S. Elections Project, estimated Tuesday morning that at least 100 million Americans cast ballots before Election Day this year.
Amid months of predictions that the U.S. would see historic participation in early voting—both by mail and in person—for the November election partly due to the ongoing coronavirus pandemic, President Donald Trump has baselessly attacked the security of voting by mail. Trump faces a tough reelection battle against the Democratic challenger, former Vice President Joe Biden.
Reprinted with permission from Alternet
A federal judge, U.S. District Judge Emmet Sullivan, has ordered the United States Postal Service to check its facilities for any unsent ballots and send them immediately.
Under Sullivan's order, postal workers must inspect their facilities between 12:30 p.m. and 3:30 p.m. on Election Day — and if they find any ballots that haven't been delivered, make sure they go out right away and arrive at their destination before the polls close.Sullivan also ordered the Postal Service to give his court an update on their sweeps.
Under Trump's watch, Postmaster General Louis DeJoy has been blamed for making changes that have slowed down mail delivery — which, Democrats have been warning, could cause ballots to arrive too late to be counted. Some Democratic activists have, for weeks, been urging Biden supporters to hand-deliver their absentee ballots.
Two countervailing forces are competing to determine the outcome of the 2020 elections' highest-stakes contests before the close of voting on November 3.
President Trump and his Republican allies are pursuing a full-court press where their success hinges less on winning popular vote majorities and more on disqualifying volumes of absentee ballots via lawsuits to be filed after Election Day—if preliminary results in a few key states are close. The Democratic Party and their allies, meanwhile, have been pushing their party's more highly motivated voter base to continue their turnout lead seen in early and absentee voting, so Republicans cannot gain traction when they turn to the courts to disqualify late-arriving absentee ballots, or cite other technicalities to disqualify votes.
"We are targeting 8.8 million students, faculty and staff in universities in Alabama, Arizona, Florida, Georgia, Mississippi, North Carolina, South Carolina and Texas. We have state-specific ads for every one of our campaigns," said Andrea Miller, executive director of People Demanding Action, which has been turning out voters in communities of color. "And then we are also advertising our election protection tool, 'See Something, Say Something'… We have done outreach to nearly 20 million people and the election isn't over."
More than 85 million people have already voted as of Friday, October 30, according to the U.S. Elections Project early voting tracking website. So far, more than 55 million absentee ballots have been received by local election officials, 30 million people have voted in person, and another 35.5 million absentee ballots have yet to be returned. According to those voters' party registrations, Democrats and Republicans have split the in-person voting, but Democrats lead in absentee ballots—where sizable numbers of voters registering as independents have cast ballots.
Whether or not the apparent enthusiasm gap continues through Election Day—or shifts via what the Republicans hope will be a large in-person turnout on November 3—is an open question. However, the Trump campaign and its allies are not counting on popular vote victories to secure a winning margin among state Electoral College delegations. Their litigation strategy arguably has been the Republican Party's most overt voter suppression effort in years—building on Trump's ongoing and baseless attacks on the legitimacy of absentee balloting.
The voting wars are legal fights over technicalities in processes that can end up disqualifying—or empowering—blocs of voters to tilt close-margin contests. The 2020 election has seen more litigation over these technicalities, especially surrounding the use of mailed-out (or absentee) ballots, than any recent presidential election. While Democrats secured many early victories, especially in state and federal district courts, Republicans in recent days have won notable decisions—and legal arguments—in the Supreme Court and federal appeals court.
There's a common thread running through these decisions that appears to give Republicans an opening to initiate post-Election Day litigation. In rulings affecting Wisconsin, Pennsylvania, North Carolina and Minnesota, conservatives have highlighted a way to disqualify what may become thousands of absentee ballots that were properly mailed and postmarked (by Election Day), but are received by election officials days later via mail delivery.
Various judges—including a likely Supreme Court majority among the high court's conservatives without Chief Justice John Roberts—have said that only state legislatures have the authority to regulate elections with federal candidates. That construction is based on the U.S. Constitution, whose opening articles delegate no power to state supreme courts, state constitutions, secretaries of state or statewide election boards to run elections. These non-legislative actors took steps this year to issue regulations to assist voters and election officials in response to COVID-19.
Thus, in Wisconsin, the Supreme Court said absentee ballots that were not received by November 3 would not be counted—because the state's (Republican majority) legislature did not extend the deadline. Justice Brett Kavanaugh also commented that election results should be known by election night, which mirrors Trump's rhetoric but does not reflect the reality of states like Wisconsin where local clerks will only start processing 1.1 million ballots that morning.
In Pennsylvania and North Carolina, the Supreme Court said one week before Election Day that it was too late to overturn ballot-return deadlines that went past Tuesday. (In Pennsylvania, it's Friday, November 6. In North Carolina, it's Thursday, November 12.) While much national press coverage said those two rulings were Democratic victories, those assessments glossed over statements, concurrences and dissents from four conservative justices that basically said that ballots arriving after Election Day could be disqualified if a legislature didn't extend the return deadline. Newly seated Justice Amy Coney Barrett didn't participate in those cases.
In response, Pennsylvania's attorney general told the Supreme Court that the secretary of state was directing all county election officials to "segregate" all absentee ballots arriving after November 3 and through the November 6 deadline. Election law experts said that Pennsylvania's move would insulate absentee ballots arriving earlier from challenges—because late-arriving ballots would not be mixed in with those earlier batches of ballots when counted.
North Carolina's state election board is not following Pennsylvania's lead—as a precautionary measure. It issued a statement urging all voters to return absentee ballots as soon as possible, but said the final deadline was on November 12.
A day after the Supreme Court ruling in the Pennsylvania and North Carolina suits, a federal appeals court in Minnesota threw out its week-long absentee ballot-return deadline extension—issued this summer by the secretary of state as part of a legal settlement with Republicans.
"The Secretary and his respective agents… are ordered to identify, segregate, and otherwise maintain and preserve all absentee ballots," the Eighth Circuit Court's decision said, "in a manner that would allow for their respective votes [for president and vice president]… to be removed from vote totals in the event a final order is entered by a court."
Taken together, the highest rungs of the federal courts have given the Republicans an opening to seek to disqualify any late-arriving ballots in Pennsylvania, North Carolina and Minnesota. (All other states with extended absentee ballot-return deadlines resulted from legislation.)
How many votes could be implicated should post-Election Day legal challenges arise? Former Oregon Secretary of State Phil Keisling, a Democrat who oversaw its shift to all-mail balloting, said that 90 percent of voters who apply to vote with absentee ballots return those ballots. According to the U.S. Elections Project, which gets its data from state election officials, as of Friday, October 30, hundreds of thousands of absentee ballots are still in play.
- In North Carolina, 883,000 ballots have been returned, out of 1.45 million requested ballots, a return rate of 61 percent. Nearly 600,000 absentee ballots have not yet been received.
- In Pennsylvania, 2.1 million ballots have been returned, out of 3.1 million requested ballots, a return rate of 68 percent. Nearly 985,000 absentee ballots have not yet been received.
- In Minnesota, nearly 1.6 million people voted early and returned their absentee ballots. The state doesn't further break down those figures. Statewide, 1.97 million absentee ballots were requested.
Under any scenario, it's not likely a presidential election winner would be known until later in the week—at the earliest. The U.S. Senate's majority will take longer, as some states such as Georgia are likely to see runoffs. And control of state legislatures may take longer still, if the balance comes down to a few contests where recounts are triggered.
Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.
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