Down to the Wire: How Last-Minute Vote-By-Mail Policy Changes Could Affect the Election

With the 2020 election tomorrow and COVID-19 cases spiking all across the country, more and more voters are turning to early voting, especially absentee and mail-in ballots. With less than a day until Election Day, more than 98.1 million votes have already been cast nationwide, blowing out the previous records set in 2016. More importantly, turnout in swing states has increased dramatically, with many early voting numbers approaching the total votes cast in 2016 for each state. 

After the notable discrepancy between the winner of the popular vote and the electoral college winner in 2016, for this election, all eyes are on a set of key swing states that could decide the Electoral College results. However, recent changes in statewide vote-by-mail policies may have a substantial impact on the election results. In many swing states, the margin of victory in 2016 was slim, so slight policy changes could have a big impact on the winner of the state and, largely, the next president of the United States. 

Pennsylvania: “A Virtual Must-Win for Both Joe Biden and Donald Trump”

Pennsylvania is largely regarded as the most critical state for either candidate’s election success. With twenty electoral votes, Pennsylvania alone could decide the election, so both campaigns are funneling many of their resources into targeted efforts in the state. 

As of November 2, former vice president Joe Biden leads President Donald Trump by 4.9 percent in the polls. Additionally, two recent court rulings have caused additional challenges for the state’s GOP. On October 19, the Supreme Court upheld the Pennsylvania Supreme Court’s vote-by-mail extension, allowing ballots to arrive up to three days after the election provided they were postmarked before November 3. This decision was a victory for the Democrats, as the GOP had challenged the extension on the basis of possible voter fraud. After the ruling, the state’s GOP filed a second challenge to the extension, but this is not expected to impact the decision. Delays in vote tallying were already expected as election officials are not allowed to begin processing mail-in ballots until Election Day, but the recent decision could further delay any result from the state. 

Additionally, on October 26, the Pennsylvania Supreme Court ruled that ballots could not be rejected due to a signature comparison mismatch. This delivers another blow to the Republicans, who filed a second challenge shortly after the decision was revealed. Just under 1.5 million absentee ballots have already been cast as of October 24, at least half of all requested, which is significantly more votes than at this time in 2016. With Trump having won in Pennsylvania by only 0.7 percent—fewer than 45,000 votes— and as many Biden voters as well as those at risk for COVID-19 are more likely to vote by mail, these decisions could swing the results in favor of Biden. 

North Carolina: “Playing a Crucial Role in 2020’s Electoral College Calculus”

With fifteen electoral college votes, North Carolina is a key pickup state for the Biden campaign, and a recent court decision could greatly impact the state’s results. Similar to Pennsylvania, on October 26 the Supreme Court upheld the state’s vote-by-mail extension by letting the state election board’s decision to extend the ballot acceptance deadline to nine days after the election stand. While the decision was unsigned, Justices Neil Gorsuch, Samuel Alito, and Clarence Thomas stated that they would have granted the request from Republican lawmakers and state officials to block the extension. 

As of November 2, Biden is precariously leading the state by 1.9 percent in the polls, a margin smaller than Trump’s victory in 2016—Trump beat former candidate Hillary Clinton by 3.6 percent, almost 175,000 votes. However, as of October 30, 1.5 million ballots have been requested, and this deadline extension could greatly impact the number of ballots that are accepted by the state. 

This extension could be critical for Biden’s bid for the state. However, the decision also means that a final verdict may not be reached for at least a week, which could leave the overall nationwide winner in question for days, possibly weeks after Election Day. 

Wisconsin: “One of America’s Foremost Battleground States”

Wisconsin is another key swing state that the Biden campaign is looking to pick up this year after several state positions were flipped to blue in 2018. A historically red state, Wisconsin has Biden leading in the polls by 8.2 percent as of November 2, but Democrats may have a more difficult path to victory after a recent court decision. 

In contrast to the decisions for Pennsylvania and North Carolina, the Supreme Court rejected the state’s attempt to extend the mail-in ballot deadline by refusing to bring back a trial court hearing that would have moved the deadline to six days after the election. This ruling is a victory for Republicans, who are keen on energizing their previous base to win this year. After the court decision was made, Wisconsin’s Democratic party launched a large voter information campaign to let voters know about the deadline and the best ways to make sure their ballot is counted. 

With ten electoral votes, Wisconsin is part of both candidates’ Midwest election strategies, partly due to Trump’s incredibly narrow margin of victory in 2016, when he won by about 23,000 votes. Around two million absentee ballots have been requested as of November 2, but the court’s block of the ballot extension could greatly impact how many votes are returned.

Minnesota: “President Trump’s Best Potential Pickup Opportunity”

Like Wisconsin, Minnesota is an important state for either candidate to win. After Clinton’s close win in 2016, Trump was looking to pick up this blue state to add to the otherwise red Midwest, but as of November 2, Biden is solidly leading in the polls by 9.4 percent. However, a current court ruling could jeopardize Biden’s chances in the state. 

On October 30, the Eighth Circuit Federal Court of Appeals ruled that Minnesota ballots must be postmarked and received by election day, contradicting the previous deadline of being postmarked by election day and received up to a week later. The previous deadline was established in July, but a separate lawsuit filed by a Republican activist caused the Eighth Circuit to make their ruling. 

This decision comes as a victory similar to Wisconsin for Republicans and could help flip the state to red. In 2016, Clinton won by 2.5 percent—only about 45,000 votes—so if this abrupt rule change lowers the mail-in ballot turnout, it could help Trump win the state. However, as of October 30, of the two million absentee ballots requested, 1.5 million have already been turned in, so it is also possible that this ruling will have little to no impact on the results—it all depends on which voters are voting primarily by mail, which voters are going in person, and which voters will be sending in their ballots last minute. 

Nevada: “A Crucial Battleground”

Similar to Minnesota, Nevada is a swing state that is crucial for Biden to win in order to win the election. This year, Nevada is serving as a model for the effectiveness of widespread and universal mail-in voting. In August, the Democratic-controlled legislature voted to require county registrars to automatically send a mail-in ballot to every registered voter. The state’s GOP immediately sued the state and lost. 

The state’s GOP, along with Trump’s reelection campaign, filed a second lawsuit on October 23 requesting a temporary restraining order on Clark County, home to Las Vegas and 72 percent of all Nevada voters, to block all ballot counting until a “meaningful” ballot-counting plan can be made. The lawsuit argued that widespread mail-in voting is susceptible to voter fraud and a more vigilant observation plan needs to be created before any ballots could be counted. On October 28, a federal judge blocked the restraining order, allowing ballots to be counted. This is a victory for the Democrats, who need to keep Nevada blue in order to win the presidency. However, out of the 1.8 million ballots mailed to residents, only around 32 percent have been cast, of which 0.03 percent have been rejected, so the lack of turnout could hurt Biden’s chances. 

Clinton’s margin of victory in 2016 was slim, winning by about 27,000 votes, so this court ruling doesn’t guarantee victory for Biden. In addition, Nevada is one of the few states that mailed absentee ballots to every registered voter, so their voting numbers will serve as a model for other states that consider enacting the same process. The pandemic has called into question our current system of in-person voting and caused many states to consider promoting mail-in ballots more, so Nevada’s results will be important in determining the future of these models.

Texas: “The Most Intriguing Political State in the Country”

Long considered a Republican stronghold, Texas has slowly turned from a red to a purple state over the past several election cycles. While Trump won the state in 2016 by 9 percent—almost 800,000 votes—polls as of November 2 have Trump leading Biden by only 1 percent. Because of Texas’ thirty-eight electoral votes, it is considered a deciding state for either candidate’s election win, but Governor Greg Abbot’s recent change regarding vote-by-mail could cement a Republican victory in the state.

On October 1, Abbot issued a statewide order that each county could only have one mail-in ballot drop box. Abbot claimed that this would help to protect against voter fraud and also allowed for increased presence of poll-watchers. This order seemed targeted at Harris County, home of Democratic stronghold Houston, the most populous county in Texas home to around 4.7 million people. Later, on October 15, a Texas judge lifted Abbot’s order, claiming that his ruling needlessly endangered voters during times of COVID-19. However, in another reversal just a week before the election, the Texas Supreme Court temporarily authorized Abbot’s ban on October 24, stating that while they review both sides of the argument that Abbot’s ruling can stand. 

Abbot’s ruling is a blow to Texas Democrats, who were counting on turnout in Democratic urban and populous areas like Houston and Austin to hopefully turn the state blue for not just the presidential race, but congressional races and the state house. As of October 30th, almost one million people have already submitted their mail-in ballots, and early voting numbers have already surpassed Texas’ total votes in the 2016 election. Democrats are hoping that record early turnout—both mail-in and in person—could finally flip the state blue for the first time since 1976. However, Abbot’s order could greatly affect turnout in traditionally Democrat strongholds, so the results will ultimately come down to which voters turn up in person, which voters are able to successfully deliver their ballots, and, most importantly, which voters’ votes fail to be counted.

What Happens Next

With Election Day looming, all eyes are on the set of swing states that could decide the election. More than ever, voting processes are being scrutinized in crucial states like Florida, Pennsylvania, Arizona, and North Carolina. Both parties are funneling all of their remaining resources into informing voters about their options for voting and how to make sure their voices are heard—especially with many states changing their vote-by-mail deadlines last-minute. 

Unlike previous elections, we most likely won’t know the results on Election Night. States vary greatly in their ballot-counting procedures, and many states aren’t even allowed to begin counting ballots until Election Day itself. We could go from an Election Night to an Election Week, maybe even an Election Month—so be vigilant and patient. 

If you haven’t voted yet, double-check the voting procedures in your state. Most likely, the deadline for mail-in ballots has passed, so look into dropping your ballot off in a drop-box or, if you are able to, voting in person. No one should be deprived of voting based on their location, so do your research and make your voice heard. 

The image featured in this article is licensed for reuse under the Creative Commons Attribution-Share Alike 3.0 Unported license. No changes were made to the original image, which was taken by Chris Phan and can be found here.