Opinion: After all the drama about absentee voting deadlines in 2020, here’s how many voters were actually affected

One of the most controversial voting policy issues in the 2020 elections, both in court and in the political arena, was the deadline for returning absentee ballots.

The matter produced the most controversial Supreme Court decision during the general election, which barred federal courts from extending the deadlines for receiving ballots in state electoral codes. Now that the data is available, a post-election audit provides insight into what the real effects of these deadlines turned out to be. Perhaps surprisingly, the number of ballots that arrived too late to be valid was extremely small, no matter what deadlines the states used or how much that deadline changed in the months leading up to the election. The numbers were nowhere near the number of votes that could have changed the outcome of any significant contest. Changing Deadlines in Wisconsin Take Wisconsin and Minnesota, two major states that were the scene of two major court disputes on these issues. In both, you could predict that voters will be the most confused about the deadline for returning absentee ballots, because those deadlines keep changing. In Wisconsin, state law required absentee ballots to be returned before Election Night. The federal district court ordered that period be extended by six days. But the Supreme Court, in a 5-3 decision, blocked the district’s court order and required the deadline in the state’s electoral code to be respected. Writing for the three dissenters, Judge Elena Kagan invoked the district court’s prediction that up to 100,000 voters would lose their right to vote, through no fault of their own, as a result of the majority’s decision that the normal term of the law state had to end. be followed. Commentators called this a “disastrous ruling” that would “likely disenfranchise tens of thousands” of voters in this key state. The post-election audit now offers insight into this controversy that drastically divided the court. Ultimately, only 1,045 absentee votes were rejected in Wisconsin for missing the Election Night deadline. That equates to 0.05% of votes out of 1,969,274 valid absentee votes cast, or 0.03% of the total vote in Wisconsin. If we put this in partisan terms and consider that Biden won roughly 70% of the absentee vote nationwide, that means he would have added 418 more votes to his margin of victory if these late-arriving ballots had been valid. The fight for voting deadlines in Minnesota was even more difficult. If voters were going to be confused somewhere about these deadlines, and as a result, many ballots would arrive too late, they might have been expected to be here. State law required that valid ballots be returned before election night, but as a result of litigation challenging that deadline, the secretary of state had agreed in early August that ballots would be valid if received up to seven. days after. But just five days before the election, a federal court pulled the rug from Minnesota voters. On October 29, he argued that the Minnesota secretary of state had violated the federal Constitution and had no power to extend the term. The original Election Night deadline went back into effect at the last minute. However, it turns out that only 802 votes, out of 1,929,945 cast absent (0.04%), were rejected for arriving too late. Despite voting rights plaintiffs losing their battles near Election Day in both Wisconsin and Minnesota, with deadlines shifting back and forth, only a small number of ballots arrived too late. Consistent policy throughout the pre-election period that required ballots to be returned before Election Night? Among the battlefield states, Michigan offers an example. Only 3,328 ballots arrived after Election Day, too late to be counted, representing 0.09% of the total votes cast there. Finally, Pennsylvania and North Carolina were two states in which the litigation managed to generate decisions that annulled the state electoral code and delayed the deadlines for receiving ballots: in Pennsylvania three days, in North Carolina six days. These decisions sparked intense political storms in some quarters, particularly in Pennsylvania. The three-day extension of the Pennsylvania Supreme Court’s term became the main justification that some Republican senators and representatives offered on January 6 to oppose the recount of the state Electoral College votes. How many voters took advantage of these extended deadlines? In North Carolina, according to information provided to me by the state Board of Elections, 2,484 ballots were received during the additional six days after Election Day added by the judicial consent decree. That equates to 0.04% of the total valid votes cast in the state. In Pennsylvania, about 10,000 ballots were received during the extended term window, out of 2,637,065 valid absentee ballots. That’s 0.14% of the total votes cast there. These 10,000 ballots were not counted in the state’s total certified votes, but had they been, Biden would likely have added about 5,000 votes to his margin of victory, given that he won about 75% of the state’s absentee vote. These are not the ballot numbers, of course, that would have been late if the courts had refused to extend the deadline in these two states. They show the maximum number that came after Election Day, when voters had every right to return their ballots so late. Even so, those numbers are still much lower than the 100,000 that had been forecast in Wisconsin. But if statutory deadlines had stayed in place in Pennsylvania and North Carolina, there is no reason to think that the number of late absentees would have been much different than in similar undecided states like Michigan, where statutory deadlines remained fixed and 0.09% of the ballots It was too late. Highly Engaged Voters The small number of absentee ballots that arrived after the legal deadlines occurred despite the massive increase in absentee voting in nearly every state. What does that explain? Voters were highly engaged, as the turnout rate showed. They were particularly attuned to the risk of mail delays seeing this problem occur in the primaries. During the weeks leading up to the elections, voters consistently returned absentee ballots at higher rates than in previous elections. The communication efforts of Biden’s campaign and the state Democratic parties, whose voters cast the majority of these absentee votes, carried the message about these state deadlines. Election officials did a good job communicating these deadlines to voters. In some states, mailboxes that allowed absentee ballots to be returned without using the mail may have helped minimize the number of late ballots, although we have no empirical analysis on this. In a highly mobilized electorate, it turns out that the specific deadlines for returning ballots, and if modified even at the end of the day, did not lead to large numbers of ballots arriving too late. That’s a tribute to voters, election officials, grassroots groups, and campaigns. Richard Pildes is a professor of constitutional law at New York University. This was first published by The Conversation: “There is a surprising end to all 2020 election disputes over absentee voting deadlines.”