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Two important events relating to the upcoming election occurred on Monday evening, October 26:

● Supreme Court Justice Brett Kavanaugh wrote a concurring opinion in Wisconsin National Committee v. Wisconsin State Legislature in which he mentioned in dicta “those States [that] also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter;” and some “states want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election;” and ‘“If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode’” (quoting, out of context, professor Richard Pildes).

● Thirteen minutes later, President Donald Trump tweeted about “Big problems and discrepancies with Mail in Ballots” and claimed that we “must have a winner on November 3rd” (Election Day).[1]

Many on social media—and some members of mainstream media—conflated these two events to conclude that Justice Kavanaugh was signaling his willingness to back up Trump’s outlandish claims. Vanity Fair declared that “Brett Kavanaugh’s Wisconsin Ruling Lays the Groundwork to Hand Trump the Election.” An article in Slate said, “Brett Kavanaugh Signals He’s Open to Stealing the Election for Trump.” A headline from The Atlantic announced that “The Supreme Court Has Chosen Reckless Partisanship.” A CNN political commentator read Kavanaugh’s concurrence as “claiming that states announce the winner on election night.”

In fact, when Kavanaugh mentioned “late arriving ballots,” he almost certainly meant ballots received after the deadline at least nominally set by the legislature. He compared such ballots to voters who “show up to vote at midnight after the polls close on election night” and “demand that the State nonetheless count their votes.”  But is that a fair comparison? And what are the rules with respect to how (and which) votes are counted? To offer clarity on election law, we offer this primer.

How We Vote

A U.S. presidential election is actually 51 different elections. Although Congress has the constitutional authority to set uniform nationwide rules for just about everything (except the “Places of chusing Senators”), it’s left most of the details to the states. The states (and, thanks to the 23rd Amendment, the District of Columbia), in turn, conduct elections in which voters vote for a slate of electors (based upon which candidate the electors have pledged to support). How states let voters choose their electors varies widely. Some states have universal mail-in voting; others allow only a small number of voters to vote by mail. Some states have almost a full month of early voting; others have none. And, perhaps most importantly, rules for counting mail-in and absentee ballots also vary by state. Some states require that ballots be received by Election Day; others require only that they be sent by Election Day. Again, federal law says nothing.

A key insight into election law is that none of these rules are completely neutral. Each rule in some way affects the outcome and therefore favors one group or another. For example, in states with less widely available mail-in voting and fewer in-person polling places, voting will necessarily be more difficult and take longer than in states with more options.[2]

How States Count Votes

Just as the front-end rules for how we vote vary by state, so, too, do the back-end rules for how votes are counted. Some states allow what’s called “pre-canvassing” (in which in-person and mail-in ballots received before Election Day can be counted before Election Day, too). Others don’t. And regardless of when states start counting, they vary widely in the order in which they count ballots. That’s why early results on Tuesday night may well be all-but indecipherable.

The only thing federal law requires is that states certify their final results by 35 days—five weeks—after Election Day. That’s because the Electoral College formally meets six days later—Monday, Dec. 14 this year—to formally vote for president and vice president. And as you might imagine, states have widely varying rules as to when their votes can (and must) be certified. Delaware, perhaps not surprisingly, is the fastest, with certification due by two days after the election. No other state certifies in less than a week, however, because it takes states some time to (1) make sure it has received all lawful ballots; (2) resolve any issues that have arisen with the initial count; and (3) conduct any recounts required by, or available under, state law in races in which the total gap between the leading candidates is sufficiently small. In other words, no state announces the winner on Election Day.

On Election Night, what we hear on the news are projections that the media is making about who will win, based upon evolving vote tallies and exit polls. When these projections give one candidate a majority in the Electoral College, media organizations call the election, and the other candidate may even publicly concede. But none of that is official.

Indeed, the “tradition” of knowing who wins on Election Night is a modern invention and a product of network television. It makes for a dramatic evening. George Washington waited two months to find out whether he had, in fact, been elected the nation’s first president. Thus, Trump’s idea that we must know the winner on election night is not grounded in law or history. And even the projections have not led to the declaration of a winner on Election Day in three of the last five presidential elections—in 2000, 2004, and 2016.

But the thing upending everything this year is COVID. Largely due to safety concerns, more people are voting early and/or remotely than in any prior election in American history, at the same time as we are experiencing unprecedented delays in mail delivery. This causes two different sets of complications: First, because of variances in when and how states count votes, early results on election night could easily be subject to what some have described as red or blue “mirages”—where the totals from particular states are quite skewed based upon whether the early reports are from particular counties, early voting, or some inscrutable combination of both. Second, it also means states will be receiving a far higher number of mail-in ballots than they are used to—many of which could well arrive after deadlines established by the legislature even if they are sent early enough so that, if it weren’t for this year’s postal delays, they would be arriving on time. None of that will matter, of course, if the winner’s margins are sufficiently large based upon undisputed ballots so that disputed ballots wouldn’t tip the scales. But if it’s a slim margin of victory, that’s where there’s the most potential for trouble—and for post-election litigation.

Courts and the Election

All of this gets at why so much attention has been paid to how the Supreme Court has handled voting-related cases from three different states thus far: North Carolina, Pennsylvania, and Wisconsin. Indeed, it’s no coincidence that these are three of the states expected to be more competitive in the election—where disputes over which ballots count at the margins could end up being decisive. In all three states, different actors have extended the statutory deadline for receiving absentee and mail-in ballots in light of COVID, the surge in mail-in ballots, and concerns over delayed mail delivery. In North Carolina, for instance, the State Board of Elections extended the deadline from three days after Election Day to nine days. In Pennsylvania, the state supreme court held that ballots received up to three days after the election should be counted so long as they were postmarked by Election Day, or there was either no postmark (which is surprisingly common for mail-in ballots) or an illegible one. And in Wisconsin, a federal district court ruled that the state must count absentee ballots sent by Election Day so long as they arrived within six days of the election.

In a series of unsigned orders, different majorities of the Supreme Court left in place the extensions in North Carolina and Pennsylvania, but wiped out the extension in Wisconsin. At least superficially, the distinction appears to be that, where state officials are responsible for changing the deadline (as in North Carolina and Pennsylvania), a majority of the Justices are unwilling to intervene. But where a federal court is responsible (as in Wisconsin), a majority will reject such an intervention. So far, so good.

The problem is that, in separate opinions in the Wisconsin, Pennsylvania, and North Carolina cases, four Justices—Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas—have endorsed arguments that could be used to change the rules for counting ballots after the election. The nub of the argument is that the Constitution commits to a state legislature the power to fix rules for elections, and so when otherstate actors change the rules, even for the best of reasons, they are actually violating the federal Constitution (even if, as in Pennsylvania, the change is based upon how the state supreme court interprets state law—a matter on which it is supposed to have the last word). On this theory, any otherwise lawful ballots received after the receipt deadline imposed by the state legislature is invalid, no matter what state authorities and state courts may conclude to the contrary.

For instance, here’s footnote 1 in Justice Kavanaugh’s concurrence in the Wisconsin case:

The text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. [Citing Justice Rehnquist’s three-Justice opinion in Bush v. Gore] In a Presidential election, in other words, a state court’s “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” [Citing Bush v. Gore] As Chief Justice Rehnquist explained in Bush v. Gore, the important federal judicial role in reviewing state-court decisions about state law in a federal Presidential election “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.” [Citing Justice Rehnquist’s opinion in Bush v. Gore]

The dissent here questions why the federal courts would have a role in that kind of case. Post, at 11, n. 6 (opinion of KAGAN, J.). The answer to that question, as the unanimous Court stated in Bush v. Palm Beach County Canvassing Bd., and as Chief Justice Rehnquist persuasively explained in Bush v. Gore, is that the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.

As Akhil Amar, Vik Amar, and Neal Katyal have explained, even if this is a fair reading of Justice Rehnquist’s opinion in Bush v. Gore (and it may not be), this reading has subsequently been rejected by the 2015 Supreme Court case: Arizona Legislature v. Arizona Independent Redistricting Commission. In that case, the Court held that, when the Constitution refers to the state “legislature” with respect to elections, it means the state lawmaking process—including the governor’s veto power and the state courts’ authority to interpret the legislature’s actions and conform them to the state constitution. Were it otherwise, the Constitution would, quite remarkably, have to be understood as rewriting every state’s constitution to give the legislature primacy over election law.

No other justice joined Kavanaugh’s Wisconsin concurrence. But in the Pennsylvania case, Alito explained exactly what could happen if that state (and the entire presidential election) ends up turning on whether the deadline imposed by the state legislature or the one imposed by the state supreme court should control. First, he wrote that “there is a strong likelihood that the [Pennsylvania] Supreme Court decision violates the Federal Constitution. The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.” (Never mind that state constitutions  – adopted by state legislatures – grant state supreme courts the ability to do exactly that.)

Second, and more ominously, although the Court refused to intervene for now, Alito pointed out that it could always intervene later. As he wrote, “we have been informed by the Pennsylvania Attorney General that the Secretary of the Commonwealth issued guidance today directing county boards of elections to segregate ballots received between 8:00 p.m. on November 3, 2020, and 5:00 p.m. on November 6, 2020. Nothing in the Court’s order today precludes Petitioner from applying to this Court for relief if, for some reason, it is not satisfied with the Secretary’s guidance” (emphasis added). In other words, if the result in Pennsylvania ends up coming down to the ballots that arrive during that 45-hour window, Alito could be foreshadowing that the Court may throw those ballots out under Kavanaugh’s theory. And Justices Gorsuch and Thomas joined Alito’s opinion without any caveat.

Conclusion

None of this could end up mattering. If one candidate is up by enough votes in enough states by Tuesday evening or Wednesday morning, the networks may well call the election. And if other disputes arise, unrelated to mail-in or absentee ballots arriving after disputed deadlines — like keeping the polls open in jurisdictions with extremely long lines, delays, and so on — courts will resolve them quickly, and most likely without too much controversy or fanfare. These decisions handed down by the Supreme Court this week prompted voter protection groups and state officials to inform voters not to put their ballots in the mail. To make sure their ballots would be counted, voters were instructed to take their ballots to a designated drop box or an elections office. This may reduce the number of ballots for which missed deadlines due to postal service delays may be a problem.

What the president’s tweets seem to be banking on, however, is a specific scenario in which he’s ahead (or where it’s very, very close) in enough states to potentially affect the result of the election, and it’s only through late-counted ballots that the state (and, potentially, the election) ends up going for Vice President Joe Biden. The critical point to take away from the above analysis is that, if it’s only late-counted ballots that tip the scales, Trump would have absolutely no leg to stand on. Federal law and the laws of every state allow the counting of timely cast ballots after Election Day — and always have. But if the entire election comes down to mail-in or absentee ballots mailed prior to November 3 but received after the deadline imposed by the relevant state’s legislature, there will certainly be litigation over whether those ballots should count, and at least four Justices have already made the arguments for why the answer may end up being “no.” Whatever one’s politics, there’s good reason for us all to intone the Election Administrator’s Prayer: “Lord, may it not be close.”

[1] This Tweet was “hidden” from viewers by Twitter because it contained “disputed” or “misleading” content regarding elections. Twitter users, however, could click past this warning to see the Tweet itself.

[2] For more on this key insight into election law, see Dimino, Sr., Michael R.; Smith, Bradley A.; Solimine, Michael E.. Understanding Election Law and Voting Rights, Carolina Academic Press.