By Brian Skinner, Esq.
Due to the ongoing COVID-19 pandemic, it is very likely that West Virginia will see a marked increase in the use of absentee voting compared to prior elections. As of August 25, already more than 22,300 of West Virginia’s registered voters have requested an absentee ballot to participate in the November 3rd general election.
Combined with the fact that many more voters will be voting by absentee for the first time, it is likely that election officials will find more mistakes such as failing to sign the envelope or sending it too late that will likely lead to a larger share of rejected ballots.
The Washington Post found that more than 534,000 mail ballots were rejected during primaries across 23 states this year, illustrating how inadvertent mistakes and uneven enforcement of the rules could result in ballots being rejected thereby disenfranchising voters.
Counting absentee ballots can be unwieldy and slow given that ballot boxes containing absentee ballots must be opened in the presence of the county clerk and two representatives of opposite political parties, separated by precincts as stated on the sealed envelopes containing the ballots, and then delivered to the polls to be opened and counted in accordance prescribed procedures, all on election day. This process will most certainly be exacerbated this year because of the expected record number of voters choosing to use an absentee ballot. Consequently, delays in counting ballots could open the door to challenges in this year’s elections.
Thirty-four states allow election officials to begin “processing” absentee ballots prior to Election Day, according to NCSL. While that means different things in different states, it generally includes opening the outer envelopes, verifying signatures and scanning bar codes. Some states allow removal of the ballots from the inner envelopes and preparation for counting (smoothing ballots and arranging them face up for feeding into counting machines).
In 13 states and the District of Columbia, including West Virginia, election officials can’t start processing absentee ballots until Election Day. In three other states absentee ballots cannot be counted until the polls close. With so many more absentee ballots anticipated this year, that’s a daunting, if not impossible, task to perform quickly.
Delays in counting ballots which creates confusion and uncertainty about election results is the subject of 2019 paper authored by Edward B. Foley, a law professor and director of the election law program at Ohio State University. His paper, “Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management”, outlined a scenario in which President Donald Trump seems to have won in battleground Pennsylvania, only to have the slowly counted absentee and provisional ballots flip the outcome, In an extreme case, he said, the state legislature could try to appoint electors to the Electoral College, which selects the president, instead of relying on the popular vote.
According to the National Conference of State Legislatures (NSCL), some states already have updated their laws this year to permit tabulation before polls close on Election Day. For example, Delaware enacted legislation allowing tabulation to begin on the 30th of the month preceding the election through Election Day, but only for 2020. Louisiana enacted a law allowing parishes with more than 1,000 voters to process absentee ballots the day before Election Day and tabulate ballots on Election Day before polls close.
While West Virginia is certainly not one of the battleground states that are likely to decide the 2020 presidential election, delays in the counting of absentee ballots may have an impact on down ballot races, especially if delays in counting ballots create an opportunity for candidates, parties, members of the media or others to sow doubts about the legitimacy of the process.
West Virginia’s Governor, election officials and lawmakers still have time to enact changes to the state’s counting procedures to avoid that outcome. But time is running short.
Brian Skinner is the former counsel to the West Virginia House of Delegates Committee on the Judiciary and counsel to the West Virginia Senate Minority Caucus. He has over a decade of experience as an adviser to legislators on legal and political issues related to pending legislation; providing research and legal analysis services to legislative committees; and preparing bills, resolutions, amendments, and other documents for the West Virginia Legislature.