By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

One issue I’ve been meaning to write about is the U.S. constitutional and statutory issues raised by voting by mail.

Yet every time I sit down to compose a post, it is superseded by a more pressing topic.

Of course, astute readers realize the legitimacy of the upcoming elections is one issue that will be affected by the struggle to seat someone asap to fill Ruth Bader Ginsburg’s shoes

At this point, I want to raise a basic question: when will results of November’s elections be settled?

At the moment, the make-up of the court is 4-4, (although Republicans have a slim majority of appointees).  We all remember how in 2000 the Supreme Court shamefully divided on partisan lines and in deciding Bush v. Gore, and threw the election to the Republicans. I challenge anyone to read that opinion and not conclude it is nothing more than a partisan excercise.

Especially to anyone who remembers the 2000 election, it has long been clear that the U.S. has long had an electoral system that would shame any self-respecting banana republic.

Yet we purport to tell other countries how they should conduct their elections when we have   done precious little to clean up ours,

Alas, once again the in-depth analysis I have long planned of the voting by mail issue has once again been trumped by some issues raised by Justin Ginsburg’s death.

I leave aside the broader state and federal legal issues that will undoubtedly be raised this year, in order to focus on a narrower set of issues considered  by the Wall Street Journal, Declaring 2020’s Winner Could Well Hinge on How Quickly States Count Mail Ballots.

Counting Backlog

Here, we should start by recognizing that states fall into three groups: those that allow counting before election day; those that can count before polls close on election day; and those that count after polls close on election day.

How soon Americans know the outcome of the presidential election could hinge on a few states—and how fast they count mail ballots.

Many states allow election workers to start processing mail ballots before Election Day, and so count them relatively swiftly. Some states—including potentially decisive swing states like Wisconsin, Michigan and Pennsylvania—don’t open envelopes containing mail ballots until Election Day.

With an unprecedented number of voters expected to vote by mail amid the coronavirus pandemic, counting ballots may take days or longer in some states, possibly delaying a tally.

If you think that the battle over Ginsbrug’s replacement is fraught, just imagine how these practical concerns will play out? And this before we get to issues that will undoubtedly arise: anyone remember hanging chads? And the legitimacy of all the ballots that are not hand-marked, and/or hand-counted in public?

Per the WSJ:

“In states like Wisconsin, Michigan, Pennsylvania, where they don’t allow clerks to process ballots in advance, they’ve got to do all that work on Election Day, and so they’re going to be backlogged,” said Amber McReynolds, head of the National Vote at Home Institute, which promotes voting by mail.

Current rules could be changed through legislation or litigation. A judge in Michigan and the Pennsylvania Supreme Court this week separately ordered deadline extensions for accepting mailed ballots, potentially pushing back the time it will take those states to determine results.

So far, election officials seem to be relying on increasing personnel as well as some resort to  our old friend, the technofix fairy.  And like many thinking people, According to the WSJ:

Local election officials in some states said they are ramping up by buying faster ballot-counting scanners and adding more workers. Other variables that could affect the timing include differing deadlines for accepting ballots: Some states take them after Election Day as long as they are postmarked by that day.

They counsel patience. But in the skeptical climate the currently surrounds American politics, slow results – especially when the numbers don’t appear to be breaking the way one expects or would like- is a recipe for even more political unrest.

The WSJ concurs:

Election officials have said voters should prepare to be patient and said that needing extra time for counting is to be expected and helps ensure accuracy. At the same time, the possibility of slow results has worried some officials and election scholars that any delay could provide an opening for rumors and misinformation to spread.

President Trump has repeatedly claimed that expanding mail-in voting will invite fraud or inaccurate results. Some Democrats accuse him of trying to undermine public confidence in voting. Academic studies haven’t found evidence of widespread fraud linked to mail ballots, though isolated cases have occurred.

“There’s a lot of suspicion among hard-core Trump supporters, and hard-core Trump opponents, about people trying to manipulate the voting system,” said Barry Burden, a professor of political science at the University of Wisconsin-Madison. “It’s just very tempting for people to believe that something nefarious has happened when the results don’t seem to be going in the way they expected.”

Practical issues

The WSJ also examines at length two practical issues that will slow the processing of mail ballots by election officials: opening votes cast by mail, and verifying voter signatures. I won’t discuss those here, but instead refer interested readers to the WSJ link.

I remind readers that it took about a month to resolve the issues raised in Florida in 2000 and that was a ‘normal ‘year when most ballots were cast in person,  not a pandemic year when there will be extensive voting-by-mail, according to procedures never tested at this scale.

And one thing we know, from past experience: the U.S. electoral system does not cope well with novel, untried and tested systems.

So, in answer to my question: when will we know the 2020 election results?

I confess, I haven’t a clue.

Do you?

What I can say is we will have an answer on who is deemed to have actually won in 2020 much later then will satisfy either side’s partisans, or indeed, anyone who has devoted amy thought at all to how rickety and subject to manipulation the U,S. electoral system actually is.

Bring on the observers!

Its’s going to be a long and deeply contested electoral cycle.