[EL] [Spam] Re: Pushing Back Election Canvassing/Certification Deadlines and the Key Dates in the Electoral Count Act

Tue Apr 21 13:18:17 PDT 2020

Not all states permit pre-election day processing, including some large states and potential swing states.  Plus, dates for valid receipt of post-election day absentee ballots might be changed, either by legislation or court order.  In addition, with many more absentees sent out, we are likely to have more issues at the polls about whether people have already voted absentee, hence more provisional ballots cast on election day that have to be resolved.

From: jfarrell at mccandlishlawyers.com [mailto:jfarrell at mccandlishlawyers.com]
Sent: Tuesday, April 21, 2020 3:00 PM
To: David Becker <dbecker at electioninnovation.org>
Cc: Pildes, Rick <rick.pildes at nyu.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [Spam] Re: [EL] Pushing Back Election Canvassing/Certification Deadlines and the Key Dates in the Electoral Count Act

Can’t speak for every state but Virginia allows localities to process mailed-in absentee ballots as they are received by the local registrar.  So most of the ballots are run through the readers before election day.

If there is a question about whether the voter has complied with the 9 steps to return a valid ballot, those ballots envelopes are put aside until Election Day when an adjudication is made by three election officers in the presence of party observers..

The ballot counting machine tapes are not run until after the polls close on election night.

I don’t think a high volume of mailed-in ballots will delay certification much at all in Virginia.  Plus there are high volume machines that we have used in recounts that can read thousands of ballots per minute.
—
John W. Farrell
Attorney at Law

[McCandlish & Lillard]<https://urldefense.proofpoint.com/v2/url?u=http-3A__mccandlishlawyers.com_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=nMSYzeObgoEc7EDegZ3VFjYq6U3ACPsJfEzNDwGL_1s&e=>

11350 Random Hills Road | Suite 500
Fairfax, Virginia 22030-7421
email  jfarrell at mccandlishlawyers.com<mailto:jfarrell at mccandlishlawyers.com>
tel (703) 934-1182 | cell (703) 507-1182

website<https://urldefense.proofpoint.com/v2/url?u=http-3A__mccandlishlawyers.com_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=nMSYzeObgoEc7EDegZ3VFjYq6U3ACPsJfEzNDwGL_1s&e=> | bio<https://urldefense.proofpoint.com/v2/url?u=http-3A__mccandlishlawyers.com_attorney_john-2Dw-2Dfarrell_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=D78xH_DE0Fe6NxdWuaJ65DqztH2xxD1MkGem8E46JSw&e=> | vCard<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.dynasend.com_signatures_vcard_jfarrell-2Dat-2Dmccandlishlawyers.com.vcf&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=GJwUmmqPszgOWn5-pXfpDPCbw_lz0aa3yI5WFoEaiY8&e=> | map<https://urldefense.proofpoint.com/v2/url?u=http-3A__maps.google.com_maps-3Fq-3D11350-2BRandom-2BHills-2BRoad-2C-2BFairfax-2C-2BVA-2B22030-26hl-3Den-26ll-3D38.857288-2C-2D77.338471-26spn-3D0.028874-2C0.038409-26sll-3D37.0625-2C-2D95.677068-26sspn-3D59.206892-2C78.662109-26vpsrc-3D6-26hnear-3D11350-2BRandom-2BHills-2BRd-2C-2BFairfax-2C-2BVirginia-2B22030-26t-3Dm-26z-3D15&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=v3IARNKSIdfPUEzqsLz6L9q4RpmqW0x8yst3iqynRDI&e=> | email<mailto:jfarrell at mccandlishlawyers.com>

[Twitter]<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_mccandlaw&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=EymQ3nMKWRxFrI23RlCAtxc--0zzB9o8xgTxr-ts9qg&e=>[Facebook]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.facebook.com_McCandlishLillard&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=Grye_Yw9MxruSl-ezPbTV-CqzqTKJPcoBK4tIBMa-6s&e=>[LinkedIn]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.linkedin.com_company_mccandlish-2D-26-2Dlillard-2Dp.c.&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=Yx5JeBY86VfMvdhdn-Fv16OJv8huMsc84q6F9AxXnPU&e=>[YouTube]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.youtube.com_user_McCandlishLillard&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=ethHOHVdDLNPClRB1yXxrurfxD3-OxzJfcbj45VnZlk&e=>

This email is not intended, nor shall it be deemed, unless otherwise expressly provided in writing, to (1) constitute or provide legal advice or counsel, unless the recipient already has an attorney-client relationship with the firm or me; (2) create an attorney-client relationship; or (3) contain my electronic, or other implied, signature.

On Apr 21, 2020, at 2:44 PM, David Becker <dbecker at electioninnovation.org<mailto:dbecker at electioninnovation.org>> wrote:

These are very good points and I’m really glad Rick has raised them. I don’t have much to add to this, other than to say the burden of counting millions more mail ballots will be significant, and it’s likely that election officials will need more time not only to certify results, but allow for voters to cure ballots with an administrative error (like lacking or mismatching a signature), and also to resolve disputes.

David J. Becker | Executive Director and Founder
Center for Election Innovation & Research
1120 Connecticut Avenue NW, Suite 1040, Washington, DC  20036
(202) 550-3470 (mobile) | dbecker at electioninnovation.org<mailto:dbecker at electioninnovation.org>
www.electioninnovation.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.electioninnovation.org_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=G0JSxSVekJWVx74Hb_StNqDypLGUh5VWP1RBygN-fYs&e=> | @beckerdavidj

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Pildes, Rick
Sent: Tuesday, April 21, 2020 2:32 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Pushing Back Election Canvassing/Certification Deadlines and the Key Dates in the Electoral Count Act

With the much higher volume of absentee and provisional ballots likely to be cast this fall, states are going to have to consider moving back their election canvassing and certification deadlines to give election officials enough time to process and count this much higher volume.  I have argued for certain measures states could take to reduce this burden, here<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.lawfareblog.com_reducing-2Done-2Dsource-2Dpotential-2Delection-2Dmeltdown&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=qHgnNNSf7VapxI0T5ZrZZ8WEY1lzlDTSV_DwiF7QCcI&e=>, but even if those measures were adopted, the surge is likely to task the capacity to meet these deadlines while processing the ballots accurately.

In addition, Congress should probably consider amending the Electoral Count Act to change its key dates to accommodate the possibly longer time it will take at least some states to certify their votes.  Current law requires the electors to cast their votes on Dec. 14th, but Congress does not count those votes until Jan. 6th.  The latter date is about as early as the newly elected Congress can convene, but there is no reason (I’m aware of) in the modern era for the long delay between Dec. 14th and Jan. 6th.  Thus, there is no reason the electors could not vote at least a week later.  Similarly, the “safe harbor” date, which is currently Dec. 8th, could then also be pushed back at least a week.  It might be that touching the Electoral Count Act at all is too freighted for Congress to be able to address this deadlines; members might believe that opening up the Act at all would trigger a Pandora’s Box of problems.

To my knowledge, none of the voting-related bills introduced in Congress thus far say anything at all about the Electoral Count Act.

(apologies for my fingers hitting the wrong keys earlier and inadvertently sending this message out before it was written)

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://department-lists.uci.edu/mailman/listinfo/law-election<https://urldefense.proofpoint.com/v2/url?u=https-3A__department-2Dlists.uci.edu_mailman_listinfo_law-2Delection&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=V8feQYoPJDFAoFzDHg2ho_5Dz97MUshPWaGCXFxbQr0&s=2lLr1vBgZSgwkqyFH4byLrRYDphZ3y-EooOyGMB_0Rg&e=>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200421/be01babb/attachment.html>