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The case for counting mail-in votes early

Credit: NYS Board of Elections

The FBI on Sept. 22 warned that foreign hackers and cyber criminals using fake websites and social media could spread disinformation regarding the results of the 2020 elections to "discredit the electoral process and undermine confidence in U.S. democratic institutions."

New Jersey's Office of Homeland Security and Preparedness followed the next morning with a 13-page "supplemental threat assessment" subtitled "The Convergence of COVID-19, Nationwide Civil Unrest and the Upcoming Presidential Election." It said having to wait months for election results to be certified, or for litigation to be decided by the Supreme Court, could motivate a wide group of do-badders, including "lone offenders inspired by conspiracy theories," "anti-government and anarchist extremists," "racially motivated extremists," and even "home-grown violent extremists" controlled by foreign terrorist organizations.

They might threaten federal officials and judges, blend into protests to commit violence against protesters or police, or launch terrorist attacks on large gatherings "while Americans are preoccupied with election results."

A few hours later, President Donald Trump said the Senate needs to confirm a Supreme Court justice quickly to replace the late Ruth Bader Ginsburg in case the court has to decide the election. And when asked at a news conference if he'd commit to a peaceful transfer of power, Trump said, "We're going to have to see what happens."

Trump may not want to concede even the possibility he could lose, especially when asked by a reporter. And it's clear he believes that challenging the way election laws are being rewritten on the fly in response to the coronavirus pandemic is a great motivator to get his voters to show up.

But what happens after the polls close concerns the FBI and Homeland Security officials, and it should concern everyone because of how people who lack a firm grasp on reality will react, and how people who want to do us harm will try to capitalize on disruption.

There's plenty of space on the political spectrum to argue about whether voters should have to request an absentee ballot or be sent one unsolicited. Colorado sends every registered voter a ballot, and you don't see Sen. Cory Gardner, a Republican who managed to win a statewide election there six years ago, arguing it's a Democratic fraud attempt.

We can also argue about how much effort it should take to vote, whether voters should have to follow instructions properly to fill out a ballot, and whether they should return the ballot on time, or have a little grace period.

But the fact is that election officials are never finished counting votes on election night. Never. That's going to be even more true this year because significantly more people than normal are expected to vote by mail because of the pandemic.

Some states, including a few key battlegrounds, normally get only a fraction of votes by mail, and may not be set up to process and tally an expected surge this year quickly and securely.

"States are trying in the course of six months to do what states like Colorado and Washington and Oregon have developed over the course of six years," said Wendy Underhill, director of elections and redistricting at the National Conference of State Legislatures. "There's a lot of changes that have to go into place if you're going to scale up."

Both the FBI and New Jersey alerts recognized one source of friction that bad actors could try to exploit, and that is delays in counting mail-in or absentee ballots. One way to fix that is to not wait until Election Day to start processing ballots.

According to a compilation of state laws by NCSL, California begins processing mail-in ballots 29 days before Election Day. Florida — where the president mails his ballot — starts 22 days out. A dozen states process ballots as they are received.

Processing can mean taking a ballot out of the envelope that tracks whether it was sent by an eligible voter, noting that that voter had voted in a database to make sure they don't try to vote again in a polling place, and even possibly running the ballot through an optical scan machine, Underhill said.

"But you don't hit count or tabulate on that machine until Election Day," she said.

Unfortunately, nearly a dozen states, including the battlegrounds of Michigan, Pennsylvania and Wisconsin, have laws that require them to wait until Election Day to even start processing ballots.

There are signs that voters expect some delay in results. A Quinnipiac University poll released Sept. 23, the day after the FBI warning, showed 63% of likely voters do not think we will know the winner of the presidential election on Nov. 3, while another 30% think we will. Political leanings did not affect voters' attitudes: The won't know/will know split was 64/32 among Republicans, 64/28 among Democrats and 60/32 among independents. (The remaining voters, regardless of party, didn't know if they would know or not, or did not answer.)

Still, if partial results show one person leading in a key state and the final result turns out to be different, people are going to want to know why. Trump has primed his supporters to believe it would be caused by fraud.

To be sure, fraud has happened in some elections. In 2018, the vote was thrown out in North Carolina's 9th District because of a Republican consultant's apparent fraud in collecting, or "harvesting," absentee ballots. But fraud is rare, and the difficulty of carrying it out on a national scale should become obvious when considering that elections are run differently in every state — and in some cases in counties within states. And it probably needs to be said: Making voting easier rather than harder is not fraud.

Candidates don't have to roll over and take it if shenanigans happen, but there also should be a recognition that elections are run largely by part-time poll workers who are going to make mistakes, especially if they're trying to operate using new rules put in place to protect voters and poll workers from a deadly virus. Those mistakes could easily become grounds for postelection lawsuits, but anecdotes do not equal widespread fraud.

And given how people who want to harm Americans might be waiting to capitalize, it would be great if leaders were as committed to preventing that harm as they are to winning their races.

Herb Jackson wrote this piece for CQ Roll Call.

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