Once again, we are facing the possibility that early election returns on November 5 will be very misleading.  In large part, this is due to the efforts of one candidate (he who shall not be named) to demonize one form of voting which means that there will likely be significant partisan differences based on the mechanism showing.  This problem is made worse by certain states which would rather make voting difficult in the name of preventing the tiny amount of fraud that exists rather than actually preventing fraud.

There are basically four types of voting in the U.S.:  1) Absentee/Mail-in voting; 2) Early (in-person) voting; 3) In-person (election day) voting; and 4) provisional voting.  Each state has slightly different rules for these types of voting.  This difference is most pronounced for absentee and early voting.  For early voting, the difference mostly comes down to the period for early voting (when it starts and when it ends) and the days/hours when early voting locations are open.

For absentee voting, there are two big areas of difference.  First, states differ on whether a reason is required for an absentee ballot and what reasons are accepted.  While almost every state now allows early voting, many states still require an excuse before a person can cast an absentee ballot.  Second, there is a wide variety of rules governing the deadline for casting an absentee ballot.  The big difference is whether the ballot must be received by election day or merely postmarked by election day.  However, six states (Alabama, Connecticut, Louisiana, New Hampshire, North Dakota, and West Virginia) require any absentee ballot dropped off by the voter to be dropped off by the day before the election, and two states (Louisiana and New Hampshire) require any ballot mailed to be received by the day before election day, and three states (North Dakota, Ohio, and Utah) require that mail-in ballots be post-marked by the day before the election.       Overall, thirty-five states are “received by” states and fifteen states (and the District of Columbia) are “post-marked by” states (but each of these states have a different post-election deadline for the receipt of ballots).  Of the crucial states (at least at the presidential and Senate level), only Nevada, Ohio, and Texas are “postmarked by” states.

But the real complication is not in the deadline for absentee voting as, even in the “postmarked by” states that are predominately mail-in states, the overwhelming majority of mail-in votes are received by election day.  It is in the rules for processing mail-in votes.  If the real concern underlying the rules restricting absentee voting was to prevent fraud, you would want to review the exterior envelopes prior to election day.  That way, if any ballot looked like it might be fraudulent, you could contact the voter to investigate and resolve the issue based on a determination if it were actually fraudulent.  (While there is more fraud for mail-in votes than for in-person votes, the level of fraud is very low even for mail-in votes.)  If the purpose is to exclude valid votes, waiting until election day and not giving the voter a chance to “cure” a mistake makes perfect sense.

While the law in some states is ambiguous (leaving it up to local authorities), about one-third of the states have a start date for processing that is within the last week before the election.  Eight states (Alabama, Mississippi, New Hampshire, Pennsylvania, South Dakota, Utah, West Virginia, and Wisconsin) start processing on election day, one state (Iowa) starts processing on the day before the election, and five states (Missouri, North Dakota, Oklahoma, South Carolina, and Wyoming) start in the latter part of the week before the election.  In Louisiana and Michigan, it depends on the size of the jurisdiction.  In Louisiana, if there are more than 1,000 absentee ballots in a jurisdiction, processing can start three days before the election but all other jurisdictions start processing on election day.  In Michigan, jurisdictions with more than 5,000 people can start processing eight days before the election but smaller jurisdictions start processing absentee ballots on the day before the election day.

In the states that allow processing to start a week before the election, the majority of absentee ballots are in the first batch of votes to be reported by the local election authorities.  Thus, in states like Georgia, Florida, and Texas, the initial results are likely to be the best results of the evening for Democrats.  On the other hand, in states like Pennsylvania and Wisconsin, mail-in votes are likely to be the last votes reported and the results in the first hours on election night are likely to be the best results for Republicans.  In both cases, the expectation is that the later results are going to be very different from the early results.

As far as in person results are concerned, the reality is that counties (or municipalities) report results at different speeds.  While each state has a time when polls close, all states allow people who are in line at that time to vote.  The unfortunate reality in the U.S. is that urban centers do not have enough voting places or election judges at those places, and that means that there tends to be a long line at the time that the polls close, and the last voter might not vote for another hour.  In rural counties, the line tends to be shorter with the last person voting maybe 15-20 minutes after the polls officially close.  Additionally, in most states, the precinct counters (as most state now do optic scan at the precinct level) have to be delivered to a central location within the jurisdiction and then input into the local election authorities air-gapped data base.  Only after the precinct data has been downloaded and printed out is the result form that precinct released.  Additionally, rural counties typically have a small number of precincts.  To use my county as an example, we less than twenty precincts.  It makes sense to only release the full count rather than to release results in batches. On the other hand, the urban counties with 200 precincts tend to periodically release partial counts as nobody want to wait six hours to get the full count.

Lastly, you have weird states like Arizona (as we saw in 2020).  Arizona essentially releases “early absentee” ballots and early voting first.  But absentee ballots received on Monday or Tuesday are put to the side while counties process the in-person voting from election day.  The last batches of absentee ballots are processed later in the week.

And finally, there are the provisional ballots.  In most states, provisional ballots are a very tiny percentage of the vote.  But, because provisional ballots are cast when there is a dispute about whether the person voting is eligible to vote (or has already voted), they are not processed until the affidavit given by the voter is properly investigated.  In many states, there is a deadline for the voter to provide the necessary paperwork to support their request to vote.  In a really close election, provision votes might make a difference.

In a perfect world, we would not have these issues.  Every state would rationally process absentee votes so that they could be reported at the same time as votes cast in person on election day.  And there would not be a significant partisan difference between early voting, mail-in voting, and election day voting so that it would not matter if one set of returns came in before the other.  But the legislatures in the various states have not always opted for a rational system.  Ultimately, assuming that everybody does their job, we will have an accurate final count.  But if this election is as close as it seems like it will be, we may once again by waiting several days to know who won Pennsylvania and Wisconsin, and those states may determine who wins the White House and the Senate.  (And if the House is close, California’s long deadline for mail-in ballots and slow processing may mean that the House may take a week or more to resolve.)

Note:  With about two weeks left to the election, either later this week or next weekend, I will start posting on what to expect on election night (in chronological order starting with the early states with the later posts dealing with prime time and the Pacific Coast states).