Even Absentee Votes Are Counted

There’d a weird rumor going around, particularly among conservatives it appears, that absentee ballots are not counted unless a race is close enough for them to make a difference. I find it odd that conservatives of all people seem so blase about the idea that some voters aren’t getting counted.

It appears to me that the rumor is being spread by Trump supporters who use it to explain that Trump actually won the popular vote, because, they say, absentee voters are more conservative. Therefore, if all those ballots were counted they would show Trump getting more popular votes than Clinton.

The American Thinker blog’s Steve Feinstein seems to be the go-to source on this. First argued that Clinton might “win the number of votes counted, but not the votes cast.”

States don’t count their absentee ballots unless the number of outstanding absentee ballots is larger than the state margin of difference. If there is a margin of 1,000 votes counted and there are 1,300 absentee ballots outstanding, then the state tabulates those. If the number of outstanding absentee ballots wouldn’t influence the election results, then the absentee ballots aren’t counted.

Noticeably, he doesn’t provide any source for his claim. But in contemporary American political discourse, apparently even “Thinkers” don’t need to provide evidence for their claims.

But in a subsequent post he backed down a little.

Perhaps it would have been more accurate in my blog post “Hillary wins the popular vote – not” to characterize the inconsistencies in the handling of absentee ballots as a town-by-town situation rather than a blanket statewide scenario. There are not, to my knowledge, any formal statutes that forbid the counting of absentee ballots until or unless the in-person state ballots have been counted first.

No laws forbidding the counting of absentee ballots. Well, that’s some comfort, but are there laws requiring their counting? He doesn’t say, and by way of evidence he gives us unnamed county officials admitting to slacking off in the vote-counting business.

However, in conversations with town officials, I have learned that it is not unusual for some officials, faced with late-night eleventh-hour time horizons and an overwhelmingly one-sided vote tally up and down the ballot, to adopt a somewhat laissez-faire attitude and call it a wrap when uncounted or unreceived absentee ballots are not of sufficient number to influence the outcome. To think that every town official adheres to an unfailingly airtight approach – even when the outcome anywhere on the ballot in that district is well beyond even the slightest question – is to have an unrealistic faith in a theoretical process that is naive to a frighteningly mind-numbing degree.

Far be it from me to be naive about local officials, but it still doesn’t answer the question of whether they are supposed to count those votes; that is, whether they have an official duty to count them.

So let’s find some slightly more authoritative source than a blog that doesn’t identify its sources. Secretaries of State are in charge of elections in their states, so what they say might have some weight.

Absentee Ballot Counts
There are widespread rumors circulating on the Internet claiming that absentee votes are not counted, or they are not counted unless election results are close. All valid votes that are legally cast in each election are counted, including absentee ballots. It can take a little longer to incorporate absentee voting tallies into final election results, but all votes are counted – regardless of whether the number of outstanding ballots can impact the results of an election or not.

Do some local officials slack off? Perhaps. But it’s clear they’re not supposed to. And as we’re seeing right now, that supposed “late night 11th hour time horizon” is bunk. States are still counting electoral ballots, because they don’t face a deadline of getting them done on election night. As the Secretaries of State go on to say,

  • In most states, absentee ballot counting begins on Election Day. Forty states and the District of Columbia follow this practice. Thirteen states of these states and the District of Columbia specify that the polls must be closed on Election Day before absentee vote counting can get underway: Alaska, Alabama, District of Columbia, Illinois, Maine, Massachusetts, Minnesota, Mississippi, New Hampshire, New Mexico, Pennsylvania, South Dakota, Tennessee and Washington.
  • Nine states allow absentee vote counting to begin prior to Election Day: Arizona, California, Colorado, Florida, Iowa, Nebraska, North Dakota, Oregon and Utah.
  • Maryland allows absentee vote counting to begin after Election Day.

[See also a state-by-state breakdown.

So a good number of states are going to be counting electoral votes after the polls close, but what is their actual deadline? In time to get a state’s vote officially certified so its electors can be made official. The National Archives and Records Administration keeps the official certifications of votes. States must make final decisions in any controversies over the appointment of their electors at least six days before the meeting of the Electors. …

December 19, 2016

The Electors meet in their state and vote for President and Vice President on separate ballots.

December 19 – 6 days = December 13. If no controversy ensues — and remember, The American Thinker’s Feinstein is specifically talking about states where the vote is not close, so no controversy is likely — the states have until then to count the absentee ballot. That “late-night eleventh-hour time horizon” occurs over a month after the election.

But, someone might argue, I haven’t proved that a complete count of ballots is actually required. There is no “national Election Code that governs the tabulation and publication of all election results.” Like most aspects of elections this is handled at the state level, a reflection of American federalism, so we have to look at it state by state. As far as I can tell from a brief search, some states don’t explicitly say that all votes must be counted, but their ballot-counting laws are written in a way that assumes votes will be counted.

For example, Florida law requires that “If any vote-by-mail ballot is physically damaged so that it cannot properly be counted by the automatic tabulating equipment, a true duplicate copy shall be made of the damaged ballot in the presence of witnesses and substituted for the damaged ballot.” Note the “any” — to know if any vote-by-mail ballot is damaged, you have to open it. The law doesn’t say “if any vote-by-mail ballot that is opened is damaged.” The legal assumption in this law is that the ballot will be counted.

California requires that the counting of absentee-ballots be open to the public, and that a member of both the Democratic and Republican county committees be present, as well as representatives from the parties of any other person on the ballot. I find it difficult to imagine that in such a situation no one would object to leaving some citizens’ votes uncounted.

Texas is more explicit.

After the polls close or the last voter has voted, whichever is later, the counting of ballots shall be conducted continuously until all the ballots are counted.

To summarize, there is no reason to believe that there is a general practice of not counting all votes because doing so is unnecessary and election officials face time constraints.

About James Hanley

James Hanley is former Associate Professor of Political Science at Adrian College and currently an independent scholar.
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