Count early, not often
I’m one of thousands of reporters out on election night calling in results to a control center at the Associated Press that sends them to the National Election Pool, a consortium formed in 2003 that includes the AP, ABC, CBS, NBC, Fox and CNN. The Associated Press collects the data through 4,000 journalists like me, and Edison Media Research and Mitofsky International make the projections.
I’m required to show up before the polls close, wait and observe, and then call in results as they’re reported by voter registrars. I called in my data Nov. 3 by 11:25 p.m., much earlier than expected. The reason it was easy was that last week Connecticut’s governor, Ned Lamont, issued an executive order allowing early processing of absentee ballots.
It’s something that all states need to do to avoid chaos in the new normal of future elections.
Edward B. Foley, professor and the Ebersold Chair in Constitutional Law at the Ohio State University, published a paper last year, well before the pandemic caused an embrace of the absentee ballot, where he played out a hypothetical scenario in which the Associated Press couldn’t call one particular state race because absentee canvassing wasn’t done yet.
In other words, Foley theorized what would happen in a situation exactly like what’s unfolding now. The Associated Press hasn’t called the races in Georgia, North Carolina, Pennsylvania or Nevada. It makes me wonder if what’s about to unfold will be four times worse than what he theorized in his paper. If so, we’re in for a bumpy end to 2020 - as if its opener was smooth.
Because absentee ballots have historically favored Democratic candidates, that “blue shift” that happens as they get counted can, theoretically, cause a constitutional crisis where we literally don’t know who the president will be.
Consider this: The blue shift has caused President Donald Trump to tweet out that the election was being stolen in the past - and he wasn’t even running. Now that he is, his campaign has filed four lawsuits to stop the counting.
I don’t see a downside to early processing or counting. Leaking is criminalized in five states, and 14 more have statutes that prohibit release before the polls close. No one’s reported an instance of this happening, says Bipartisan Policy Center. Florida, the site of electoral mayhem in the past, allows counting 22 days before the election; it’s why the rat-tat-tat analysis of the likes of MSNBC’s Steve Kornaki leaves out the Sunshine State.
States should have allowed fast tabulation because the number of mail-in ballots was at least twice as high as it normally is - at least, it was for the primaries according to Pew Research. But more so-called “no-excuse absentee voting” is expected in the future even when we get control over the pandemic. For one, it enables early voting even when polls aren’t officially open. We set voting records this year because of the absentee ballots and not just because people wouldn’t have gone to the polls because of the risk of COVID-19; in other years, work schedules, transportation and misinformation have affected turnout.
Pennsylvania tried to secure permission to count early because the law doesn’t allow it, but its Supreme Court said no go.
Even if there are more ballots, I don’t see potential leaks justifying failing to process and count before Election Day. Elections are overseen at the local level by one person in 22 states. Elections in the remaining 28 are run by a board or more than one person so that oversight is bipartisan. If a leak would benefit one party, it would disadvantage the other. There’s enough local control to prevent that from happening.
Early counting turns on whether governors or election officials have the power to make this rule. The governor or the election official in 29 states issued orders changing an aspect of elections earlier this year; I haven’t found any reason why they couldn’t have authorized early action this year.
Ballots that arrive after Election Day don’t have to prevent election night results, either. Registrars know how many ballots are mailed out. With early counting, they know how many remain outstanding and can report those numbers to journalists like me so that the Associated Press can figure those facts into their race calls.
There are more reasons to count early besides satisfying the scores of Americans who’ve bitten their nails and stress-eaten over the results. The New York Times reported in October that Russia planned to sneak into our post-election uncertainty and sow chaos. We don’t need interference from foreign bad actors to blow up our elections; as long as we wait to tabulate election results, we risk havoc all by ourselves.
It’s possible that a candidate could contest results even if they poured in before midnight on Nov. 3. The key is that press organizations - their commitment to accuracy prevents calling shots prematurely - could have made their calls by then even if they were being overly cautious. These pronouncements don’t have any formal authority, but they serve as factual counterweight to denial of results. It’s notable that Professor Foley’s hypothetical constitutional crisis arises because the Associated Press doesn’t make a call.
Any challenges to results need to be underway immediately; a matter of days makes the difference. In 2000, when only one state was contested, it took until Dec. 12 for the Supreme Court to issue its opinion. That year, the Monday after the second Wednesday - the day the Electoral College votes - was Dec. 18.
In 2020, we have four fewer days and more states may be contested. I think we’ll pay a price for failing to count early across the country. We can’t do much about it now except to put in place any laws or rules that will prevent it from happening again.
Chandra Bozelko writes the award-winning blog Prison Diaries. You can follow her on Twitter at @ChandraBozelko and email her at email@example.com.