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• Time after Election Day to count absentee ballots, overseas military ballots, and provisional ballots is enshrined in both federal and state law.
• In fact, federal law allows states until more than a month after the election to finalize their results before the casting of electoral votes.
As Nov. 3 approaches, President Donald Trump has been expressing alarm about ballot counting extending beyond Election Night.
"Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd," Trump tweeted on Oct. 26
The following day, Trump added in remarks to reporters, "It would be very, very proper and very nice if a winner were declared on Nov. 3, instead of counting ballots for two weeks, which is totally inappropriate, and I don't believe that's by our laws."
However, the president was wrong. When the media "calls" a presidential race — which may or may not happen on Election Night — it is because they feel that projections from the current results are strong enough to announce one candidate over the other. It’s not an official result.
"There are no official results on Election Night — there never have been," said Edward B. Foley, an Ohio State University constitutional law professor who specializes in elections. "Election Night tallies are always just preliminary, pending certification of the canvass of returns under state law, which takes time. Every state has a law on this point."
Especially in this year’s election, when many voters are sending in their ballots or voting early in person rather than voting on Election Day due to the coronavirus pandemic, experts say it will take a decisive victory by one candidate or the other to be able to declare a winner on Election Night or early the following morning. (Trump’s tweet was later flagged by Twitter as potentially harming the integrity of the election.).
Here are some of the specific reasons why Trump is off-base.
According to the National Conference on State Legislatures, 19 states have laws allowing ballots to be counted if they arrive after Election Day, but are postmarked on Election Day (or, in some states, the day before Election Day). This number could vary this year due to pending litigation.
In many cases, such postmark rules for absentee ballots have been around "for years," said Matthew Weil, director of the Elections Project at the Bipartisan Policy Center.
In close races, even a modest number of late-arriving ballots could prove decisive.
Many states allow service members stationed overseas a grace period for ballots they mail back to the mainland. For instance, states like Texas and West Virginia will require overseas military ballots to be received by Nov. 9, while others require a postmark, but not receipt, by Nov. 3, such as Georgia and Nevada.
Provisional ballots are those that are cast when a voter’s eligibility is in question. If election officials resolve those questions, the ballot will be counted, but the checking and counting process takes time.
The rules for provisional ballots were streamlined by the Help America Vote Act, a federal law passed in 2002. "Provisional ballots by their very nature cannot be counted on Election Day or Election Night and must be verified subsequently as part of the canvassing of returns," Foley said.
Under federal law, states have until Dec. 8, or six days before the presidential electors vote, to finalize their ballot count.
This deadline acknowledges, as a matter of federal law, that states are not obligated to have a final official result on Election Night.
Even if a projected winner were to be announced by television networks and other media companies on Election Night, nothing would be official until the presidential electors cast their ballots on Dec. 14, and Congress officially counts the electoral votes on Jan. 6.
As a practical matter, Weil said, "the vast majority of ballots will be counted within two or three days of Election Day, even in states like Michigan, Pennsylvania, and Wisconsin that cannot start counting absentee ballots until the day before Election Day or on Election Day itself."
The Trump campaign did not respond to an inquiry for this article.
Trump said that "counting ballots for two weeks ... is totally inappropriate, and I don't believe that's by our laws."
He’s wrong. Post-election day time to count absentee ballots, overseas military ballots, and provisional ballots are enshrined in both federal and state law. In addition, federal law allows states until more than a month after the election to finalize their results for the casting of electoral votes.
We rate his statement Pants on Fire.
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Donald Trump, remarks to reporters, Oct. 27, 2020
Donald Trump, tweet, Oct. 26, 2020
National Archives, "The 2020 Presidential Election Provisions of the Constitution and U.S. Code," accessed Oct. 28, 2020
National Conference of State Legislatures, "Receipt and Postmark Deadlines for Absentee Ballots," Sept. 29, 2020
Federal Voting Assistance Program, "Voting Assistance Guide," accessed Oct. 28, 2020
Snopes.com, "Are US Election Results Required To Be Certified on Election Night?" Oct. 27, 2020
PolitiFact, "Best practices for journalists covering the 2020 election: A report from the Poynter Institute," Sept. 20, 2020
Email interview with Edward B. Foley, Ohio State University law professor, Oct. 28, 2020
Email interview with Matthew Weil, Elections Project director at the Bipartisan Policy Center, Oct. 28, 2020
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