The refusal of the Supreme Court to take up a challenge to Pennsylvania’s last minute changes to its ballot deadlines in the 2020 election was done without explanation by the majority. All the more clear is the case for reforming our national law on Election Day — the need for it to be a single date with results that can be announced after the polls close. It's not election week, month, or season. It’s Election Day.
In 2020, six states failed to meet this standard. These states unfairly threw the process of counting the electoral college and popular vote into chaos. Forty-four states managed, despite the pandemic. In 1845, Congress enacted the Presidential Election Day Act to establish a “uniform time for holding elections for electors.” It declared that “the Tuesday after the first Monday in November” is the day on which all states must appoint electors.
Since the 1848 election, states have been able to meet this deadline despite the 1918 pandemic, World Wars I and II, and hurricanes. A single election day and prompt reporting is part of the peaceful transfer of power. The idea is that voters should not have to wait days or weeks to hear election results. The longer the vote-counting takes, the more exceptions made during the counting process, the less confidence voters have in the outcome.
This was certainly the case in 2020. And the press was complicit in the disruption by refusing to call election results due to the “red mirage.” This was an idea first pushed by a Democratic consulting firm funded by Mayor Bloomberg saying that on election night it was highly likely that President Trump would appear to have won in a landslide, but would ultimately lose when all the mail-in ballots were counted over the next week.
Under this scenario, in-person election day voters are overwhelmingly Republican, and conversely, mail-in ballots are overwhelmingly Democratic. The press quickly adopted this narrative, which became the justification for not announcing results on election night in battleground states. In the event, the outcome managed to take days or weeks to announce. Going forward this needs to be corrected.
Let’s hope that by 2024 all 50 states have procedures in place that make Election Day a real concept. Election day should be a hard deadline by which mail-in ballots can be processed in advance, but not to be counted until the polls are closed. In Florida, nearly 44% of the ballots were cast by mail, and they were still able to hit the tabulation button on election night. Same for Ohio and Texas. Why should any other state fail to do so?
It's not just mail-in ballots that can delay a final vote count. California has made ballot harvesting legal and allows for ballots to be counted up to 17 days after the election. States allow military and overseas ballots to arrive after election day and to still be counted. Many states allow voters to register on Election Day and to cast a ballot, while it waits for their residency to be confirmed afterwards.
Some states allow people to cast a ballot even though they cannot be found in the voter rolls, while their registration is verified after the election. All of these exceptions to counting ballots on Election Day create a complicated system that leaves voters with doubts about the credibility of the results. State legislatures are already fermenting on this issue, eyeing changes to election laws so the mishaps of the 2020 election don’t occur again.
One easy change would be for the Congress to make Election Day a firm deadline that would require results to be tabulated in an uninterrupted manner with appropriate monitors on election night after the polls have closed. The Constitution grants it this power in the clause of Article II that says: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes.” Such a day “shall be the same throughout the United States.”
The importance of this was marked today by Justice Clarence Thomas, in a fiery dissent from the Supreme Court’s decision to turn aside the Pennsylvania case. “Unclear rules threaten to undermine this system. They sow confusion and ultimately dampen confidence in the integrity and fairness of elections.” Let’s hope that by 2024, they will enact clear, predictable rules and deadlines covering all of America and making it easy to vote and hard to cheat and enabling states to announce results on election night.
Ms. Malpass is a journalist based in Washington.