[EL] New subject line: Direct choice of electors by legislators

[David Becker]

While it can be the case that almost all in-person ballots could be counted in a state by midnight on election night, those results are unofficial in EVERY state, ALWAYS, until certification. This is important because there may be challenged and provisional ballots, or ballots that need to be reviewed because the scanner indicates an undervote. And of course, there are also some late-arriving mail ballots, often cast by members of the military. In every state in every election we’ve ever held in history, election night results are partial and unofficial, even for in-person ballots.

Of course, when the margins are large, we may still be able to determine the results with a high degree of certainty. California will have many more ballots left to count after Nov. 3 than any other state, but we will know who won the presidential race there, in all likelihood by shortly after 8pm PT on Nov. 3. But when the margins are close it’s important to note the unofficial nature of all election results until certification, which is the way it has been since 1792 (and probably earlier).

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<http://www.electioninnovation.org/> | @beckerdavidj

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Mark Scarberry
Sent: Friday, September 25, 2020 1:09 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] New subject line: Direct choice of electors by legislators

The sensible way to look at this is to say that if all the votes are cast (including by being mailed) on or before Election Day, then the appointment of electors is made on that day, even if we won't know who was appointed until all the votes are counted. (I'm sure others have pointed that out many times before.) This is an argument for requiring votes to be mailed, at least, on or before Election Day, but not requiring them to be received by that day. I don't think any state allows counting of mail-in ballots postmarked after that day, though if there is no postmark, then some other method of deciding whether the ballot likely was mailed on or before Election Day will need to be used. (If I understand UOCAVA correctly, the overseas ballot must carry a postmark no later than Election Day or be faxed no later than 8pm on Election Day. Others will know more.)

This is not like Schrodinger's cat -- which is neither alive nor dead until we open the box and look. A winner will have been chosen on Election Day, absent the kind of problem that would cause the election to fail. We just won't know who won on Election Day until we finish counting the ballots.

Is it ever the case that the ballots cast in person in a state all are counted by midnight? It would be unreasonable -- more than unreasonable -- to require the counting to be finished by then, whether ballots are cast in person or by mail. "There'll be time enough for counting, till the counting's done."

Mark



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