Vote in person, to make sure your vote counts

Instead of last Wednesday evening, imagine if Hurricane Zeta had made landfall on the Gulf Coast on the evening of Monday, November 2?

Joe Biden would have likely carried Florida with ease amidst a darkened panhandle, and early turnout figures in Louisiana and Mississippi would have favored the Democrats—even if the states ultimately voted Republican. At the very least the Republicans would be demanding keeping the polls open past 8 PM on the first Tuesday in November. What an interesting legal reversal of fortunes the timing of such a Hurricane might have proven?

Power outages across the Gulf Coast would make the ability to cast a ballot on Election Day effectively impossible. The critical Florida Panhandle, a GOP stronghold, would have been locked out of participation by sheer virtue of electricity denied. Instead of suing to close the polls, Republicans would be screaming to Amy Coney Barrett and her fellow Justices about extending ballot access.

That is the ironic thing about the ability to vote. Wider franchise access benefits one party—that is until it benefits the other. Postal voting, the current bete noir of the GOP, likely ended up being the reason that a lot of vulnerable conservative senior citizens were able to cast their ballots for Donald Trump in the wake of last week’s storm.

Across the nation, 100 million Americans are estimated to have voted early—either in person or by postal ballot. For those, though, who cast their ballot by mail after Thursday, a real danger exists that the ballots will not arrive in time to count.

Last week, GOP legal efforts convinced the 8th Circuit Court of Appeals said in its 2-1 decision to uphold a state law in Minnesota which prohibits counting ballots which arrive after 8 pm on November 3 by mail, or 3 pm by hand-delivery.
The Supreme Court is likely to uphold that decision, but could it go even further— to states where extensions have already been upheld. So far, the Justices have been consistent. If a state court extends the period at which ballots can be received beyond Nov. 3, though postmarked by Election Day, the High Court will support that decision—as in the Pennsylvania case where postal ballots can arrive by Friday, Nov. 6. State Courts rule upon the constitutionality of state law, that decision read.

By the same logic, the Supreme Court should uphold the Minnesota ruling. The High Court did so for Wisconsin last Monday in a 5-3 order that prevented the Wisconsin Sec. State from counting mailed ballots received after Election Day. A Federal District Judge had upheld the effort by the state’s Democratic Secretary of State to extend the deadline to receive absentee ballots, despite the clarity of state law. The Supremes overturned the ruling, saying federal courts cannot provide judicial review in such matters, but state courts can.

At least, that was the closely divided opinion of the Justices until Amy Coney Barrett arrived. She was absent for the Pennsylvania ruling, and recused herself in the Wisconsin ruling, as arguments occurred as she had not formally taken her seat until after oral arguments.

Little evidence exists that Justice Barrett will recuse herself in any further decision, and that’s the challenge. Could the new conservative majority block the counting of postal votes even in states where they are allowed by state courts to be received after Election Day? Even in states like Pennsylvania where the Supreme Court divided in a 4-4 ruling? Could the postal ballot counting be stopped ‘in medias res’ on Thursday?

Barrett’s fellow conservative Justices dissented in the Pennsylvania v. Boockvar and likewise in a similar North Carolina case, but constituted part of the majority in the Wisconsin case. They too have been consistent. If the legislature of the state rights a law that says the ballots must arrive by November 3, the ballots must arrive by November 3 to count. Legislatures are empowered by the US Constitution to decide on presidential electors; therefore, Legislators— and only legislators— decide election procedures. Neither federal courts nor state courts have the power to overrule.

That translates to meaning that even if a voter thinks that a postal ballot can be mailed on November 3, it still might not be counted. Here in Louisiana, election officials suggest that it is better to have a loved one hand-deliver the ballot at this point, or—better yet—help them vote in person.

In New Orleans, completed absentee ballots may be hand-delivered to the City Hall or Algiers Courthouse. In Jefferson Parish, curbside options are available at the Yenni and Odom buildings, in Elmwood and Gretna respectively. A hand-delivery certification form must be completed if returning a ballot for someone other than yourself. (More info at https://www.sos.la.gov/ElectionsAndVoti-ng/Vote/VoteByMail/Pages/default.aspx)

At this point, though, voting in person— at one’s local precinct on Tuesday —may be one’s only certain viable option. Regardless, the critical nature of this election means that every vote will count. High turnout only effects the candidates at the top of the ticket, but those running for Judge, DA, School Board, Constable, PSC, or Justice of the Peace. Strangely, more people vote, the more one’s vote makes all the difference. These elections could be unpredictable, and close. Please vote—in person, at this point, if you have any doubt!

This article originally published in the November 2, 2020 print edition of The Louisiana Weekly newspaper.