Prospect of a contested US election outcome in 2020 is very real

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No evidence for Donald Trump’s ‘rigged election’ claims, but sharp rise in early and postal voting could create problems

Outside the Fairfax County government centre, long socially-distant queues have formed since early morning.

The polling site in northern Virginia opened for early voting on September 18th. Several days later, hundreds are continuing to come here every day to cast their vote.

Jocelyn, a 56-year-old office worker, has been queuing for 2½ hours and is nearly at the top of the line. It is her first time voting in Virginia, having moved recently from Georgia. "I always voted early in Georgia, and this time I just couldn't wait. We have to vote him out," she says of President Donald Trump.

She says she is a big fan of Kamala Harris, the Democratic vice presidential candidate, and also supports Joe Biden. Her two daughters, aged 30 and 40, are less enthused though. "They're Bernie people," she says, referring to 78-year-old Bernie Sanders, who captured the vote of many younger Democrats in the 2016 and 2020 primary campaigns.  "But they'll vote for Biden. Anything to get rid of Trump."

Virginia is one of the states where voting in this year's presidential election has already begun. The United States has long offered voters various ways of casting their ballots, both before and on election day, though the provisions vary widely between states.

Utah, Washington state and Oregon have used postal voting for years, for example, without any significant problems. Virginia, along with Maine, New Jersey, South Dakota and Vermont, offer early voting 45 days before the election, though the average early-voting period nationally is 19 days.

The issue of early and postal or mail-in voting has become highly politicised this year, amid an expected surge in the number of people voting by mail due to the coronavirus pandemic. Trump has repeatedly alleged that the November election could be “rigged” because of the high number of expected mail-in ballots.

This week he refused to commit to a peaceful transfer of power, citing his concern about postal voting. “The ballots are out of control,” he said.

Sharp rise

In reality, election fraud in the United States – either in person or by mail – is rare and there is no indication that postal voting is more prone to fraud than regular voting. Testifying before Congress this week, FBI director Christopher Wray said the bureau had seen no evidence of widespread voting fraud.

But there have been some isolated instances in recent years. A high profile case in North Carolina in 2018 found that Republican officials had improperly collected tampered-with ballots and the election had to be rescheduled. More recently, three men were charged with fraud in connection with a local city council election in Paterson, New Jersey.

While these incidents are rare, there is nonetheless concern that the sharp rise in postal voting this year could lead to logistical problems.  On Thursday, Trump referenced ballots that were thrown into a river – a reference to an FBI investigation into reports that ballots sent by overseas military members were found in a river in Pennsylvania, though the authenticity of those ballots has yet to be confirmed.

The challenge is not limited to postal voting. There are also question marks over the preparedness of regular in-person voting booths, amid concerns that the US’s election infrastructure may not be up to the practical challenge of holding an election during a public health crisis.

Primary elections in several states earlier this year were plagued by long queues. Georgia and Wisconsin were among the states that drastically reduced the number of polling stations open because staff could not or did not want to work during the pandemic. The result was long queues and reduced turnout as people decided not to vote.

With the elections less than six weeks away, there are fears of chaos at polling booths on November 3rd. In addition to the presidential contest, all 435 seats in the House of Representatives and a third of those in the Senate are up for election, as well as hundreds of state legislature seats, gubernatorial races and special ballots across the country.

Here in northern Virginia, preparations are under way to ensure the election goes as smoothly as possible. Gary Scott, the registrar and director of elections for Fairfax County, explains that several changes have been introduced by the state of Virginia ahead of this election.

“The biggest change is that an excuse is no longer required to vote absentee. Prior to July 1st you needed to have a reason for requesting an absentee ballot. Now you just need to be eligible to vote,” he says. The second big change is that people who choose to vote by mail have until noon until the Friday after the election – which takes place on a Tuesday – to return their ballots, though they must have been posted by election day.

Already officials have seen a big rise in the number of absentee ballots requested in Virginia. “In 2016, we had 137,000 ballots cast by election day. This time around, we have put 150,000 ballots into the mail in the first weekend alone,” he says. This is replicated throughout the state of Virginia. Almost a million voters have already requested mail-in votes or have voted early.

Long queues

In Fairfax County, Scott explains, voters can return their ballots by mail or at secure “drop boxes” that will be set up across the county.  They can also track the progress of their ballot online.

As the long queues outside the polling centre in Fairfax on this weekday afternoon suggest, there has also been a big increase in early voting. “That people are showing up this early is unexpected,” he says. “Usually, we don’t see a rise until the middle of October when our satellite locations open.”

This has in turn put a pressure on resources.

“We have a strict limit on the number of people permitted inside the building at any one time. This slows things down, but we have to protect the health and safety of the staff as well as the voters,” he says, noting that it has been more difficult to recruit workers this year as people are wary of working in confined spaces. Staff have been given personal protective equipment, including face shields and gloves, while voters are given single-use pens to avoid contamination. “We’re doing everything we can do to reduce physical contact,” he says.

Virginia is one of many states that have introduced changes to the electoral system ahead of November's election in order to make it easier to vote.  The Democratic governor, Ralph Northam, signed a package of measures agreed by the state legislature, including abolishing the requirement that voters provide an excuse to received an absentee ballot and new rules on voter ID.

But in other states, there are concerns that efforts to expand voting options for people will be undermined.

The Trump administration and the Republican National Committee have launched a range of lawsuits against individual states' efforts to expand access to voting. A case brought by the Trump administration against Nevada's move to automatically send absentee ballots to every voter in the state, was dismissed by a district court judge this week, in a victory for Democrats.

Nevada is one of several states, including Pennsylvania, that have announced they will send absentee ballots to all voters, unlike in Virginia where voters have to request them. So-called “no excuse” voting is opposed by the president, though he supports absentee ballots – offering the postal option to those who can not vote in person on polling day.

In Texas, the option to vote by mail is mostly open only to those aged 65 and over, a provision that has also been open to legal challenges. Democrats too have brought several suits ahead of election day, most recently a demand that a court in Pennsylvania extend its election day deadline in order to count mailed-in ballots.

In particular, there are growing concerns about so-called “naked ballots” in Pennsylvania – votes that are returned by mail, but not without a required “inner secrecy” envelope, a sleeve that goes in the return envelope. The state supreme court recently ordered officials to reject such returned votes. Senior officials warn that this could lead to 100,000 postal ballots being discarded – a potentially consequential number given that Trump won the important swing state by just 44,000 votes in 2016.

Supreme court

The prospect of a repeat of the 2000 election outcome, the result of which came down to disputed votes in Florida, is weighing on minds in America. Indeed Trump himself said this week that one of the reasons he wanted a swift replacement on the supreme court for Ruth Bader Ginsburg, who died last Friday, was because a full court should be in place in case it is required to arbitrate on a disputed result in November's election.

This scenario is entirely possible (not withstanding the fact that Republicans had no such concerns when they blocked Barack Obama’s nominee to the court in 2016, also an election year).

In 2000, the supreme court famously adjudicated on the Al Gore versus George W Bush election, which came down to disputed ballots in Florida. Even if the court is not asked to intervene on the election result, it is expected to hear other cases relating to voting rights and election procedures in the coming months, with the result that Ginsburg's replacement will have a real impact on issues relating to electoral representation and voter enfranchisement.

While the expected increase in postal voting this year has become politically sensitive, an overriding question is which candidate is likely to benefit.

Research suggests that Democrats are more likely to vote by mail and vote early. A Quinnipiac University poll this month showed that 47 per cent of Democrats plan to cast their vote by mail, compared to 13 per cent of Republicans.

This has raised fears among Republicans that Trump’s warnings about postal voting may be harming his own chances at re-election by discouraging his supporters from voting remotely.

Republican operatives have been encouraging registered Republicans around the country to request an absentee ballot if their state requires it, despite the president’s message that the postal voting system is rigged.

Here in Fairfax County – traditionally a strong Democratic area – the surge in early voters bodes well for Biden. While the odd Trump T-shirt can be glimpsed in the line that snakes around the landscaped area in front of the polling building, most of those voting are Democrat.

Democrats in electorally-important states such as Georgia and North Carolina, with a history of gerrymandering and voter disenfranchisement, are also hoping that a rise in voter registrations will help boost Democratic participation in the election. However, in Florida, a key swing state in November, more registered Republicans have signed up to vote than in the 2016 election, a trend that has been welcomed by the Trump campaign.

New electoral procedures and an increase in postal voting may affect the dynamic on election night. With Donald Trump expected to perform better among in-person voters, there could be a scenario which sees Trump ahead on November 3rd when the regular in-person votes are counted, while Joe Biden takes the lead as postal votes are processed, a process that could take several days, or even weeks.

However the mechanics of this election plays out, the prospect of a contested outcome in 2020 is a very real one.

Suzanne Lynch

Suzanne Lynch

Suzanne Lynch, a former Irish Times journalist, was Washington correspondent and, before that, Europe correspondent