Congress sets the date of the presidential election, but everything else about federal elections in our federalist system—including where votes may be cast and when they get counted—falls to the states. Historically, this has led to such important changes as that of giving women the right to vote, which Wyoming did in 1869, more than 50 years before the Nineteenth Amendment took effect. But it has led to a crazy quilt of vote-count procedures—a mess that state legislatures should address lest it undermine faith in election results.

The reason that the nation has waited so long for the election results in Pennsylvania, for instance, lies not just in the fact that the Keystone State is a battleground. It is one of a group of states that follow the ill-advised procedure of not starting to count mail-in and absentee ballots until Election Day. The same is true in Wisconsin, Mississippi, and Alabama. Every other state follows the more common-sense procedure: allow counting to start before Election Day. (A CNN map provides a useful guide.) In other words, an unhappy happenstance has aligned two key battleground states with what must now be considered an outdated vote-count process.

The legacy of 2020, like it or not, is one of Election Month, not Election Day. If millions of early votes are going to be cast long before Election Day—and, indeed, solicited by state governments sending out ballots—then the vote count cannot proceed only on the first Tuesday after the first Monday of November.

Wisconsin and Pennsylvania are not the only states that complicate the counting process. Another 18 states permit votes to be counted “upon receipt,” and that can be problematic. Washington permits votes to be counted so long as they arrive by November 23. Imagine the headaches and chaos this would cause if that state had a close election. Delay inevitably undermines voter confidence in results, as one can’t help but wonder what might be going on in back rooms. In a time of “ballot harvesting” and no-postmark-required returns, voting “early and often” can become “vote early, often, and late.” Such rules are an over-correction for the exaggerated, even invented, problem dubbed “voter suppression.”

Continuing a count after the general contour of election results is known cannot help but create an incentive for chicanery—leaving some votes uncounted in order to close (or create) a gap. None of this will increase citizen confidence in the electoral process. As a matter of maintaining citizen faith in timely and accurate reporting of results, states should put their heads together and align their vote-count practices. Congress could step in, too, but those who generally value state-by-state variation should hope that common sense and federalism get it right without that being necessary.

Photo by Spencer Platt/Getty Images


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