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This November, millions of voters will participate in our democracy from their safety of their homes by mailing in their ballots. Like many other states in the country where absentee voting has traditionally been used by only a small percentage of the electorate, Maine does not count mail-in ballots received after Election Day, even if postmarked prior to the election. Unless the state amends this law, it may unintentionally disenfranchise thousands of Maine voters and unwittingly contribute to a constitutional crisis.
Last Thursday, President Donald Trump signaled an intent to frustrate the vote-by-mail process by withholding funding for the U.S. Postal Service, stating that he did not want the Postal Service to be capable of handling “millions and millions of ballots.” This statement comes on the heels of widespread reports that mail is being delayed due to policy changes instituted by Trump-appointed donor and Postmaster General Louis DeJoy, as well as warnings from the USPS to officials in 46 states, including Maine, that the states’ deadlines for sending or receiving absentee ballots are inconsistent with the Postal Service’s ordinary delivery standards.
There is little doubt that widespread delays in mail delivery would disproportionately affect Democratic voters and thus boost Trump’s chances of winning re-election. Election law experts have noted that Democrats use mail-in voting at a much higher rate than Republicans, resulting in a “blue shift” whereby mail-in ballots tallied after in-person voting results are reported break strongly to the Democratic candidate. A recent poll of registered Wisconsin voters highlights how the coronavirus has exacerbated this disparity: 79 percent of Republicans plan to vote in person and only 15 percent plan to vote absentee by mail, while only 39 percent of Democrats plan to vote in person and 55 percent plan to vote absentee by mail.
The disparity in political party affiliation and use of mail-in voting also increases the likelihood that Trump will have a lead in some states on election night but see that lead disappear as the states tally mail-in ballots over the following days and weeks. Perhaps recognizing this possibility, the president recently tweeted that we “must know Election results on the night of the Election, not days, months, or even years later!” The president appears to be setting the stage to declare victory on election night and decry subsequently counted mail-in ballots as fraudulent.
States can’t prevent Trump from erroneously declaring victory or raising frivolous accusations of election fraud. States can, however, make sure that every absentee voter who casts a vote by Election Day has their vote counted.
Providing this protection to voters will be essential in an election where the president is likely to file lawsuits preventing states from counting ballots received after Election Day — suits that will probably succeed if states do not extend their mail-in voting deadlines. It will also preserve public confidence in the mail-in voting system, allowing citizens to confidently vote by mail rather than risking their health in a crowded polling place.
In our federalist system of government, we place primary authority to administer elections with the states precisely because it serves as a check on federal abuses of power. Some states, including Nevada, Minnesota and Massachusetts, have recently amended their election laws so that ballots postmarked by Election Day can be counted even if they’re not received until after that date. That leaves about 30 states that don’t count ballots postmarked by Election Day but received thereafter, including virtually every swing state. Several other states have deadlines that only extend a few days (or less) after Election Day.
Unless these states amend their election laws, widespread postal delays could allow Trump to suppress countless votes submitted by citizens far in advance of Election Day. This possibility, together with the blue shift and the president’s rhetoric regarding the validity of mail-in voting, is a recipe for a constitutional crisis.
Maine must do its part to mitigate the risk of this crisis. Gov. Janet Mills should convene an emergency legislative session and the legislature should amend M.R.S. 21-A § 755, the Maine law establishing that “in order to be valid, an absentee ballot must be delivered to the municipal clerk at any time before the polls are closed,” to allow ballots postmarked by Election Day to be counted when they are received by local officials after that date.
This change would help address a looming threat to Maine’s elections, to its citizens’ right to vote, and to our constitutional order.
Scott Bloomberg is an associate professor of law at the University of Maine School of Law. Dmitry Bam is a professor of law and vice dean and provost of the University of Maine School of Law.