If the Margin of Victory Is Smaller Than the Number of Rejected Ballots, the Courts Will Decide the Election

by Thomas Neuburger

The November election is shaping up as a mess no matter what happens. Forget the politics for a moment and consider just the logistics. From a practical standpoint, it will be next to impossible for any state that doesn't already do full-on vote-by-mail — which is most of them ­— to even conduct it.

Almost all of the post-Covid primaries produced questionable results, even though Biden was by then the shoe-in nominee. Were there enough polling places? Not in most states. Were there enough poll workers? Not in most states. Does that not by itself mean the system prevented voting, even if unintentionally? Of course it does.

Systemic disenfranchisement — a system that prevents voting — yields doubtful outcomes at best, litigation and charges of illegitimacy at worst.

The Logistical Mail-In Mess

Now add in the task, greater by an order-of-magnitude, faced by states new to mail-in voting — and also by voters themselves. Each state has to actually manage this election — provide ballots to everyone who wants to vote, receive those ballots, verify them, and count them. Every one of those steps will give critics cause to complain, especially in "battleground" states.

Mailing out ballots to the entire electorate will be costly, especially in more populous states, and these costs fall on the states themselves. That's the reason many wanted the Covid relief packages to contain additional funding to states to run this election. That effort failed.

Receiving those ballots will burden the already lumbered Post Office to an previously unanticipated degree. Will ballots be mailed in time to be received? Laws that determine the mailing deadline vary from state to state, some allowing more time, some less. Laws covering when ballots must be received vary as well. "Election day" will turn into election month, which allows for sowing of much confusion and distrust.

Will there be accusations of political interference in those deliveries? We're already seeing them, teed up and ready to go. And those problems are present before votes are even counted.

Not Just Logistics, But Fraud

As to verifying and tallying votes, states face another mess. Voters in most states aren't used to voting by mail, and a great many of them will make "mistakes" that could cause their ballots to be disqualified.

Some of those disqualifications will be easy to justify — forgetting to sign the envelope, for example. But some disqualification may be capricious — for example, if the signature "doesn't match" the one on the registration card in the judgment of some (perhaps partisan) election official. Many Republican officials will seek to disqualify as many ballots in "Democratic" districts as they can, just as they worked to disqualify as many Democratic "hanging chad" ballots as possible in Florida during the stolen election of 2000.

Does this mean I don't think Democrats don't steal elections? Far from it; check out this recent piece. But unless the result is a blowout in both the popular vote and the Electoral College, this election will be different: Biden enters this race with a lead, so Democratic interests will be to protect that lead, not diminish the other side's total.

Any Close Election Will Be Litigated

This leads to one conclusion:

• If the margin of victory in November is smaller than the number of disqualified ballots, the courts will decide the election.

According to NPR, "An extraordinarily high number of ballots — more than 550,000 — have been rejected in this year's presidential primaries." That was just the primary, and that total is larger by half than the number of disqualified ballots in the entire 2016 general election, roughly 320,000. In addition, the writers note that "voters of color and young voters are more likely than others to have their ballots not count."

Which means, if the election is close, litigation is sure to come from the losing side, whichever side is declared the winner. Yes, Republicans are likely, if past is prologue, to cheat. But given the cluster that will undoubtedly occur, both sides' partisans will have ample cause to complain.

Hillary Clinton eventually won the 2016 popular vote by close to 3,000,000 votes, but lost the Electoral College 304-227 — not even close. In contrast, George Bush lost the popular vote by just 500,000 in 2000, and won the Electoral College by just five, 271-266.

If the year 2000 repeats itself in just this respect, its closeness (ignoring the Supreme Court's unopposed theft of it), November will be a nightmare, as will December and January. And if the courts do make the final decision, watch out.

It will be great for ratings if a protracted battle occurs — those who channel Les Moonves are already salivating — but our close-to-failed-state democracy, already on the ropes, may well go down for the count.