Simone Lawson
The counting of votes after Election Day has been a contentious issue in the United States, with varying opinions on its constitutionality. Some argue that counting votes after Election Day is legal and expected, especially in states like Michigan, Pennsylvania, and Wisconsin, which cannot start processing absentee ballots until the day before or on Election Day. This process can take time, and the increase in mail-in voting due to the COVID-19 pandemic has further extended the counting process. However, others, including former President Donald Trump, have claimed that counting ballots for extended periods after Election Day is inappropriate and potentially illegal. The Elections Clause in the Constitution grants states the authority to regulate elections and make rules regarding vote counting, but it is subject to Congress's power to make or alter state regulations. While the right to vote and have votes counted properly is vital, there are concerns about states counting ballots received after Election Day, potentially violating federal laws.
| Characteristics | Values |
|---|---|
| Is counting votes after election day constitutional? | Yes, it is legal and expected for votes to be counted after election day. |
| Which states allow counting votes after election day? | Michigan, Pennsylvania, Wisconsin, Texas, West Virginia, Georgia, and Nevada. |
| What type of ballots are counted after election day? | Absentee ballots, overseas military ballots, provisional ballots, and mail-in ballots. |
| Who is responsible for counting the votes? | Election officers assigned by the presiding judge. |
| What is the purpose of counting votes after election day? | To ensure that all eligible votes are counted, including those received by mail or from overseas military personnel. |
| What are the concerns regarding counting votes after election day? | Potential for fraud, errors, or suspicion that may influence the election outcome. |
| How is the integrity of the election protected? | Federal laws prohibit foreign nationals from voting, and states are responsible for safeguarding elections and complying with federal laws to prevent fraud and illegal voting. |
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What You'll Learn
The constitutional right to vote
The right to vote is a fundamental aspect of democratic societies, and it is enshrined in the constitutions of many countries, including the United States. The Elections Clause of the US Constitution is the primary source of constitutional authority for regulating elections for the US House of Representatives and the US Senate. This clause empowers states to determine the "Times, Places, and Manner" of congressional elections, subject to Congress's authority to "make or alter" state regulations.
The right of American citizens to have their votes properly counted and tabulated, without illegal dilution, is vital to determining the rightful winner of an election. State governments are responsible for safeguarding elections in compliance with federal laws that protect voting rights and prevent issues like illegal voting, discrimination, fraud, and errors.
However, there have been concerns about the enforcement of federal election requirements. For example, some states have counted ballots received after Election Day, contrary to federal law, which establishes a uniform Election Day for federal elections. This issue has been exacerbated by the failure to adequately vet voters' citizenship status and the previous administration's actions, which prevented states from removing non-citizens from voter lists.
The interpretation and enforcement of election laws can vary across states, leading to discrepancies in voting procedures and the potential for disputes. For instance, the counting of ballots after Election Day has been a contentious issue, with some claiming it as a sign of fraud, while others maintain it is legal and expected, especially with the increase in mail-in voting due to the COVID-19 pandemic.
To ensure the integrity of elections, it is crucial to adhere to constitutional principles, enforce federal requirements, and maintain transparency throughout the voting process. The constitutional right to vote encompasses not only the act of casting a ballot but also the accurate counting and tabulation of those ballots, free from interference or manipulation.
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Federal laws and vote counting
Federal law establishes a uniform Election Day across the United States for federal elections, as per 2 U.S.C. 7 and 3 U.S.C. 1. This means that votes must be cast and received by the election date established in law. In other words, ballots received after Election Day cannot be counted, and states that do so are not complying with federal law.
The United States Court of Appeals for the Fifth Circuit held in Republican National Committee v. Wetzel (2024) that federal statutes set the day by which ballots must be cast and received. In this case, the court ruled that counting ballots received after Election Day is illegal, siding with Republicans in a case challenging Mississippi's five-day grace period. The ruling stated that Mississippi's law was preempted by federal law, which establishes a singular day for the election of Congress and the president.
In another case, Judicial Watch sued California under the National Voter Registration Act of 1993 (NVRA) to compel it to remove the registrations of ineligible voters from its voter rolls, as required by federal law. Judicial Watch has also been involved in similar lawsuits against Illinois and other states, advocating for election integrity and voter rights.
While election results are never final on Election Day, and the counting process can be time-intensive, states have implemented various measures to expedite the process. For example, 43 states allow election workers to begin processing and tabulating mail ballots before Election Day. This involves verifying voter information, eligibility, and preparing ballots for tabulation. These measures aim to balance the need for accuracy and speed in declaring election results.
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State laws and vote counting
The United States Constitution grants state governments the authority to regulate elections for the US House of Representatives and the Senate, including the power to determine the "Times, Places, and Manner" of these elections. This includes the authority to enact laws concerning vote counting and determining election results.
While the US Constitution establishes a single national Election Day for federal elections, state laws and practices can vary regarding the counting of ballots after Election Day. In some states, like Texas and West Virginia, overseas military ballots must be received by a certain date, while other states, like Georgia and Nevada, only require a postmark by Election Day.
In the 2020 election, states like Michigan, Pennsylvania, and Wisconsin could not start counting absentee ballots until the day before or on Election Day, leading to a longer vote-counting process. This was due, in part, to the high number of mail-in ballots as a result of the COVID-19 pandemic.
Despite the practicalities of counting ballots, some have questioned the legality of counting votes after Election Day. However, federal and state laws do allow for the counting of absentee, overseas military, and provisional ballots after Election Day, and states have until over a month after the election to finalize their results.
The counting of ballots after Election Day is, therefore, a normal part of the electoral process in the United States, and state laws govern the specific regulations and timelines for this process.
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Vote counting and fraud
Vote counting after Election Day is legal and expected in many states. For example, in Michigan, state law requires election officials to count all ballots received before 8 p.m. on Election Day. However, counting ballots after Election Day has been a source of controversy, with some alleging fraud when votes are counted past midnight. These claims were deemed false, as it is legal to continue counting votes after Election Day as long as they were received by the deadline.
Instances of voter fraud are rare, and most allegations are baseless or due to mistakes by voters or administrators. However, there have been some notable cases of voter fraud in the United States. For example, in Texas, six people were charged in an elections investigation involving "vote harvesting," which often involves payment for collecting and dropping off other people's absentee ballots. To prevent voter fraud and ensure fair and honest elections, the Election Assistance Commission has been directed to amend the Voluntary Voting System Guidelines and establish standards for voting systems. These guidelines aim to protect election integrity and prevent fraud or mistakes.
Some countries, like Germany and Canada, require the use of paper ballots counted in public by local officials, which reduces disputes and increases transparency. In contrast, the United States has a patchwork of voting methods that can lead to chain-of-custody problems. Additionally, mass voting by mail and the acceptance of ballots without postmarks or those received after Election Day can create opportunities for fraud and suspicion.
To preserve the integrity of American elections, it is crucial to enforce Federal election requirements and prohibit states from counting ballots received after Election Day. It is also essential to address non-citizen registration and voting, as this is prohibited by Federal law. By enforcing these statutes and ensuring proper voter identification, free, fair, and honest elections can be maintained.
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Vote counting and election results
While there is a single national Election Day for congressional elections, states have the authority to establish the specific procedures for counting votes and certifying results. This includes counting ballots received after Election Day, which is allowed in some states. However, federal laws prohibit counting ballots without a postmark or those received well after Election Day.
The process of counting votes can be influenced by various factors, such as the number of ballots cast, the methods of voting (mail-in, in-person, etc.), and the presence of provisional or disputed ballots. For example, in the 2020 election, the COVID-19 pandemic led to an increase in mail-in voting, which typically takes longer to process due to signature verification.
The accuracy and integrity of vote counting are crucial to ensuring fair elections. To enhance the integrity of the process, some countries, like Germany and Canada, use paper ballots counted in public by local officials, reducing disputes. The United States, on the other hand, has a patchwork of voting methods, which can lead to chain-of-custody issues.
The right of citizens to have their votes properly counted and tabulated is vital to determining the rightful winner of an election. While there may be legal provisions for counting votes after Election Day, the timely and accurate completion of vote counting and certification of results is essential to maintaining the integrity of the electoral process and preserving public trust in the democratic system.
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Frequently asked questions
Yes, it is constitutional to count votes after election day. Federal law allows states to finalize their results for the casting of electoral votes for up to a month after the election. States like Michigan allow election officials to count all ballots received before the deadline of 8 p.m. on election day.
Votes are counted after election day to ensure that all valid votes are accounted for. This includes mail-in ballots, overseas military ballots, and provisional ballots. The canvass process confirms the accuracy of election data and identifies areas for improvement.
Yes, it is common for votes to be counted after election day. In fact, it is expected that votes will be counted after election day, especially with the recent increase in mail-in voting. The media's projection of a winner on election night is based on preliminary results, and official results are certified later.
No, votes received after election day cannot be counted. Federal laws prohibit states from counting ballots received after election day. However, states may have different deadlines for receiving ballots, such as allowing overseas military ballots to be received by a later date.
