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Winning the Vote-By-Mail War

by Kevin Kelton

The vote-by-mail war is on! With President Donald Trump and his puppet Postmaster General, Louis DeJoy, aligning to muck up the postal service’s ability to collect and deliver mail-in ballots, Democrats in Congress seem to have little power to resist Trump’s assault on the USPS budget and processes. Yet the battle is not lost.

Each of the 50 states plus D.C. sets its own election laws. And those laws can be adapted in extreme circumstances. So let’s say that because the delivery of mail-in ballots has been slowed down by Trump’s interference, causing millions of ballots to arrive after the individual states’ deadlines. In some states that is election day, but in some it could be three to seven days after Election Day if the ballot is postmarked by November 3rd.

Under those circumstances, some states may have room to loosen their deadline to allow for processing of the delayed ballots. In other words, a governor in tandem with the secretary of state or the state legislature could decide to expand the three day window to five or seven days, allowing tens of thousands of valid mail-in votes to qualify to be counted. Such a last-minute change would be akin to deciding to leave the polls open past the announced closing time so as to give everyone already on line a chance to vote.

Of course, that would be an ugly rodeo of individual state laws and politics. But Democrats are not without their weapons. If the party has enough clout in a state, it’s possible the politics could work in their favor.

Using the chart below, I analyzed the most likely scenario: Joe Biden wins most of the swing states now leaning or likely to vote blue if all the votes are counted, but might lose if all the mail-in votes are not accepted. How would that work out if those state’s governments align with the Democrats?

Lets look at 25 states that Biden has a good chance of winning if all the votes are counted (chart below). 

In states in which at least two of the three electoral power players – governor, secretary of state, and state legislature – are controlled by Democrats, those mail-in vote deadlines might be adjusted to let Biden carry 284 electoral votes and win the election. However, in-state power battles with Republicans could make that number dwindle.

In most states, the legislature has little role to play in the vote count and certification of elections. So if we just count states in which the governor and secretary of state are Democrats (or all three components are in Democratic hands) (blue highlights), Biden commands 252 votes – eighteen shy of the presidency.

While that sounds ominious, a more nuanced analysis delivers a more optimistic result. Vermont (3), Oregon (7 votes) and Washington (12 votes) are three “divided government” states that are very likely to vote overwhelmingly for Biden, making the issue of late mail-in ballots moot. That adds 22 votes to the 252 to give Biden 274 and the presidency. 

Still too close for comfort? Consider Nevada and New Hampshire, both states with either a Democratic governor or a Democratic Secretary of State and a Democratic state legislature. That combination of consolidated power could shake one or both of those states’ electoral votes back into Biden’s grasp, potentially adding up to ten more EC votes to his column.

And while Arizona has a Republican governor and state legislature, it’s conceivable that the state’s Democratic Secretary of State, Katie Hobbs, might be able to use her office to get more votes counted in a close election, giving Joe a shot at 11 more votes.

Of course, no analysis of this type can be definitive, as we cannot account for legal challenges between government branches, lawsuits, and the partisan makeup of each state’s highest court.

But the bigger picture shows that the Biden campaign is not helpless even with a feckless postal service that is stacked against them.

Trump may be able to slow up the mail. But he cannot unseat the people who will decide how the votes are counted.

Kevin Kelton is a cohost of The More Perfect Union podcast and founder of Open Fire Politics.