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Voting Rights Advocates Urge Calm Before Election Storm

With one week until Election Day and questions growing over voter suppression and the process for a final count, a panel of legal experts on Tuesday called for calm and a tempering of expectations around results.

WASHINGTON (CN) — With one week until Election Day and questions growing over voter suppression and the process for a final count, a panel of legal experts on Tuesday called for calm and a tempering of expectations around results.

Over 60 million votes have already been cast for the 2020 presidential election, shattering early voting totals from 2016. The unprecedented early turnout is spurred largely by the still-raging Covid-19 pandemic that has killed over 225,000 Americans.

Also spreading from state to state are lawsuits filed by civil rights organizations and political parties alike who, in many cases, are angling to either uphold existing election laws or expand them to make voting easier.  

Some legal efforts to expand voter access in 2020 have been successful. Groups like the NAACP Legal Defense Fund, League of Women Voters and Campaign Legal Center, among others, have helped open up absentee and early voting in states like Arkansas, Alabama, Louisiana, and South Carolina.

“The result is across the country and in places in the South, voters are standing in long lines with masks, preparing to vote. On one hand, that’s bad news. On the other hand, that’s good news because the turnout is something like we’ve never seen before,” NAACP Legal Defense Fund President Sherrilyn Ifill said Tuesday during a teleconference hosted by the National Task Force on Election Crises, a bipartisan group of experts focused on ensuring a free and fair presidential election.  

“There is a tremendous interest and determination to participate in this election despite the obstacles,” she added.

Chief among those obstacles happens to be the incumbent candidate in the presidential race, Ifill said.

President Donald Trump’s disinformation campaign over mail-in voting, suggestions he won’t accept results that don’t fall in his favor and his continued encouragement for supporters to monitor polling places on Election Day has created a uniquely pressurized atmosphere for Americans, according to Ifill.   

FILE - In this Monday, Oct. 26, 2020, file photo, voters wait in line to enter the Pip Moyer Recreation Center, in Annapolis, Md., on the first day of in-person early voting in the state. Tens of millions of Americans already cast ballots in the 2020 election amid record-breaking early voting during the coronavirus pandemic. But for some voters in a handful of states, casting an early ballot in-person isn't even an option. (AP Photo/Brian Witte, File)

Regardless, she said, voters must “concentrate and be focused in the lead up to Election Day, but also what happens after Nov. 3.”

Trump falsely stated on Twitter Monday that the “final total” of all ballots must be counted by Nov. 3, prompting the social media platform to flag the remark as misleading.

Trevor Potter, director of the Campaign Legal Center, explained Tuesday that the president’s tweet was factually and legally inaccurate. 

“There are a couple of deadlines,” Potter said, pointing first to the so-called safe harbor deadline of Dec. 8.

Established under the Electoral Count Act of 1887, the safe harbor provision allows votes to continue to be tallied from Nov. 3 until the first week of December. This became an issue in the 2000 election when Florida argued it would miss the safe harbor deadline if it committed to a recount in the Bush-Gore race.  

The next deadline is the meeting of electors to cast their votes on Dec. 12. If a state misses that deadline and electors have not cast their votes by then, the next key date is Dec. 29, which is the final deadline for states to get their certifications into the Senate and House of Representatives for counting.

On Jan. 6, 2021, a new Congress is sworn in, which Potter said creates a new opportunity for electors to be designated by states past the initial deadlines.

“But the longer a state waits, the greater the chance there will be a dispute in Congress, particularly if the House and Senate are held by different parties, on whether to count electoral votes as they come in. The other possibility lawyers worry about is that you could end up with competing certifications from a state,” Potter said.

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If a state were slow in counting votes, a state’s legislature could jump in to say the state has reached the safe harbor deadline before counting has finished. This could result in the state legislature stepping in to certify one of the presidential candidates as the winner, and hypothetically a governor could refuse to certify that result. The governor would then send a competing slate of electors to Congress. 

“At the end of the day, Congress is the final judge on the slate of electors,” Potter said. “I don’t think it’s correct to say the legislature can never step in and say ‘we’re going to ignore the will of voters,’ but what they can do is say ‘we can’t figure out the will of the voters.’ It will be up to Congress to determine if it’s down to the state-certified result or the governor’s certification. One way or other, those electors have to be counted or Congress has to make its own decision on this before Jan. 20.”

Virginia Kase, CEO of the League of Women Voters, said Tuesday her organization is encouraged by turnout this year despite the challenges. But she acknowledged “there will be hotspots and incidents of bad actors working to suppress the vote.”

Intimidation tactics or not, she emphasized it is “very unlikely” the U.S. will have results on election night.

Voters cast ballots at Boston City Hall during early in-person voting in Boston on Oct. 26, 2020. (AP Photo/Elise Amendola, File)

“State and local races will take longer to call this election cycle. That should be expected and means the system is working exactly as it should. It is critical every voter’s voice is heard and the media ensures they are patient and calm with the results. We don’t want to see candidates rushing to declare victory,” Kase said.

When Americans wake up on the morning of Nov. 4, some results will be known – for example, in states that pre-process early votes and absentee votes so they can be fed into machines on Election Day.  

Potter said Tuesday that Arizona, Florida and North Carolina will be “pretty well ahead of the curve” in terms of having the votes they have received by election night on their official tally reports.

“That will tell us a lot about those states, but even there, remember, depending on the state and their law, there may still be ballots coming in post-election that were legally cast before or after Nov. 3 that will arrive by mail from overseas and from military voters,” he said. “There will be no final returns in any state on Nov. 4.”

Potter said no one knows exactly how long some states will be counting. There are two scenarios where it could take a while: a very close race or a state simply taking a long time to tally votes, for a variety of reasons. The latter outcome is highly likely in Pennsylvania, Wisconsin and Michigan, which do not start processing paper ballots, early votes and absentee ballots until Election Day.

“In those circumstances, they’ll be behind the curve and will have potentially millions of votes they need to open, certify and count and put into their machines. That will take some time,” Potter said.

The thicket of legal hypotheticals around this year’s election could make even the most accomplished attorney sweat, but Potter said Tuesday everyday Americans should take heart that the Constitution is abundantly clear on the transition of power: there will be one.

Electoral College votes will be read aloud publicly when Congress meets in the Jan. 6 joint session and a clear winner will be known no later than Jan. 20, after any objections are resolved.

“That’s the date in which the incumbent term ends, no matter what, at noon,” Potter said.

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