Will the “Mail-In-Vote” Become the Supreme Court’s “Hanging Chad” of 2020?
The difference between 2000 and 2020 is that COVID-19 changed the way we vote, making mail-in-voting the norm and not the exception. That propelled a surge in voting the likes of which the country had never seen before.
Some may argue this is a good thing as more of the electorate cast votes in a U.S. presidential election than at anytime in history. Others may argue that mail voting can be subject to fraud or manipulation as there are fewer safeguards to verify that an eligible voter actually cast the written ballot. And every state has its own rules and procedures, with some states like Texas making mail in voting the exception and not the norm, and others like California which sent in mail-in-ballots to everyone, regardless of whether they requested one or not.
As Trump’s lead in key rust belt states evaporated overnight and even Georgia looks to be fading away, Trump and his MAGA supporters took angrily to Twitter to make arguments about alleged mail-in-voting fraud and irregularities. Meanwhile, Democrats cheered the record turnout from mail-in-votes which seemed to largely go in Biden’s favor. While MAGA supporters stormed county offices shouting “Stop the count!” after the polls closed, Biden supporters shouted “Count every vote!” after the polls closed.
This was not wholly unanticipated. Even before the election, Trump’s lawyers had already been laying the groundwork for U.S. Supreme Court challenges — realizing that mail voting, which was used in record numbers due to COVID-19, not only churned out more ballots than ever before, but also was likely to tip the scales in favor of Democrats. Why is that? Perhaps Republicans tend to vote more in person while Democrats are likely to vote by mail? Or, certain demographics might not vote at a all unless a ballot arrived for them in the mailbox.
What has the Supreme Court done so far?
— — In the days running up the 2020 election, the U.S. Supreme Court denied a number of Republican challenges seeking to prevent the extension of vote counting past the election day in Pennsylvania and North Carolina, two states which are being decided by razor thin margins. (See https://apnews.com/article/supreme-court-election-orders-4820caf0f0e8a7aaa3488f242b633cdf).
— — In Wisconsin, the Supreme Court maintained a federal appellate decision which required ballots to arrive by election day in order to be counted. (See https://apnews.com/article/supreme-court-election-orders-4820caf0f0e8a7aaa3488f242b633cdf).
— -After the election, the Supreme Court issued a decision requiring Pennsylvania to segregate mail-in-votes which arrived after November 3rd. (https://thehill.com/regulation/court-battles/524900-supreme-court-orders-separate-count-of-late-arriving-pa-ballots)
Even while holding a conservative majority, the Supreme Court appears to be allowing state courts more deference over their federal counterparts in setting election procedures.
This has not always been the case, however. In 2000 the U.S. Supreme Court, in the now infamous Bush v. Gore decision, prevented the Florida State Supreme Court from ordering a manual recount of 9000 so-called “under votes” in Florida, the now infamous “hanging chad” case we remember that threw the election in favor of George W. Bush.
In a conservative decision, the U.S. Supreme Court reminded us that presidents are chosen by state electors — not individual voters:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1.
Constitutionally, the electoral college, not the popular vote gets to choose the president of the United States. While state legislatures have decided to give individuals the right to vote to determine how electoral votes are cast, according to Supreme Court precedent, that vote is not guaranteed, and the state legislature can decide to appoint its own electors and hence decide to give all electors to a particular presidential candidate.
While that’s not likely to happen in 2020, it’s important to realize the individual right to vote for a President is really at the behest of state legislatures who have the power to set the rules — and those rules can make or break an election as we are seeing in 2020.
However, the Supreme Court has also acknowledged that once the individual is granted the right to vote, that vote is subject to due process and the equal protection clause of the 14th Amendment, meaning:
Having once granted on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).
In 2020, due to COVID and lockdowns, states implemented mail-in-voting in a proportion to in-person-voting not before witnessed in the history of a U.S. presidential election. Constitutionally, I would argue that these two classes of votes must have the same safeguards and procedures to ensure their authenticity and accuracy. That is, in order for individual votes to be treated equally in a national election, all votes should have a verification process to ensure they are from registered and eligible voters. Was that done in the all the closely contested states in 2020 where mail-in-votes were used in record numbers? While the President and his supporters have made allegations of fraud and irregularities, they will have to provide evidence to support their claims in order to launch meaningful legal challenges.
One thing is clear, however — Covid-19 changed the way many Americans voted across the country and these state changes in voting procedures made a material difference in the outcome of the election in 2020. While President Trump laments his likely loss, he has already directed his lawyers to look for that “hanging chad”. Whether the U.S. Supreme Court hears a serious challenge to mail-in-voting issues or irregularities is surely something to watch for in the coming weeks.