[DISCLAIMER: I am not associated or affiliated with any political party (I am an American)]
It's been six days since the polls closed. Not a single state has certified their ballots and declared a winning candidate, yet the corporate and social media have already declared Joe Biden and Kamala Harris to be the winner. While it is extremely unlikely that this will change, the odds are not zero.
Each state has its own deadline to finish their vote tallies and announce the official results for their state. The first of these will be Delaware, which has five days to post their official vote counts (unless the deadline falls on a Saturday or Sunday). As a result, the first official results of the 2020 election will be announced today (November 9th). Note that the citizens of Delaware didn't actually vote for Biden or Trump, but elected three party faithfuls who will represent the state when the Electoral College convenes on December 14th. These delegates will actually cast the official votes for the state of Delaware.
The next official deadlines are for Louisiana, Oklahoma, South Dakota, Vermont, and Virginia, which each have ten days to certify their results. The official vote counts for these states will be this Friday, November 13th. California has the longest window in which to count their votes. They can complete the tallying and announce them sooner than their deadline, but they legally have until December 11th to do so under their own state law. This is an interesting deadline in the sense that it violates Federal law which stipulates that the state counts must be certified by December 8th.
The media has done a marvelous job of conflating absentee ballots with mail-in ballots. The U.S. Constitution stipulates that all votes must be received by the close of polls on (this year) November 3rd. Article II Section 1 says:
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
While this has generally been interpreted to allow votes that are mailed in and postmarked by the day of the election, that has been in the context of voters that requested an absentee ballot for a valid reason. This year, a number of states changed their laws to allow for anyone to mail in a ballot. These mail-in ballots have different rules to follow than the absentee ballots; that's because, legally, they're not the same thing.
What has raised legal issues is how some states have changed their rules partway through the election process. Since the election laws are codified by the legislature of each state, any changes made by the state election commission is patently illegal. Any vote counted under the changed rule is an illegal vote.
For example, in Pennsylvania, the state proceeded with counting ballots received, with or without legible postmarks to prove when (or if) they were mailed. This is in spite of their own law that says the ballots must be received by 8:00 p.m. election night:
The Pennsylvania Supreme Court allowed a three day extension to go forward and allowed votes to be counted as long as they were postmarked by the 3rd. Strangely enough, they okayed the counting of ballots with illegible or missing postmarks. The U.S. Supreme Court was asked to block this, but they let the Pennsylvania Supreme Court judgement stand while stipulating that the late ballots be kept separate from the others. The issue here is that the state court cannot change election law, only the legislature. Again, from Article II Section 1 of the U.S. Constitution:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
It can be argued, with some merit, that this year is different because of the pandemic and the need to practice some form of socially distanced voting. However, the ballots in hand, at the close of the polls, should be the only ones counted. Those would be the legal votes, according to the U.S. Constitution.
Even in states with razor-thin margins, a recount will probably not change the outcome. However, the disallowing of late ballots may make enough of a difference to flip the outcome of that state. It is still unlikely that it would change the overall outcome, but by counting every legal vote, we can all be comfortable in knowing that our election system is still honest and secure.
WE ARE STRONGER TOGETHER
PS: To those who would argue that the U.S. Constitution needs to be changed, well, surprise! The Founding Fathers had no illusions that their contract was perfect. In fact, they dedicated an entire article to the ability to do so. Article V says, in its entirety:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
If We, the People, don't like it, then We, the People can change it. It's that simple.
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