Last week, President Donald Trump said he was “counting on the federal court system to make it so” that whatever preliminary tally is complete on Election Day will be validated as the final vote count, meaning states would not have the opportunity to count the anticipated record-high numbers of mail-in ballots. This would functionally end American democracy. And it appears that other Republicans are going all in on the idea that we should just not count actual votes.
On Thursday, Florida Sen. Rick Scott proposed a bill that would change election laws with less than six weeks to go until November’s election, causing complete mayhem and ensuring that untold numbers of otherwise valid votes would not be counted. Scott’s proposal is simple and entirely unworkable. His Help America Vote Act of 2020 would require that mail-in ballots be counted within 24 hours of when voting closes on Election Day. Scott’s proposed legislation would also prevent mail-in ballots received prior to Election Day from being processed and counted until the morning of Nov. 3, contradicting state election statutes across the country including one that he signed when he was governor of Florida. Basically, the bill would move back the date by which votes can start to be counted and move up the date by which the count must end. This would limit the count to a single less-than-48-hour window, shortening the count in some cases by weeks. In Scott’s own home state of Florida, as one example, votes can start to be counted up to 22 days before Election Day. In Colorado, which does all mail-in voting, they can be processed as soon as they are received and counted 15 days before Election Day. Under Scott’s law, those votes would all have to begin to be counted on Election Day itself. Any votes that did not get counted simply would not count.
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Scott, who has opposed providing funding for the administration of the election in COVID-19 relief bills, does not include in his bill any federal money that would help states meet this new deadline. Without funding to implement such an immediate revamp of election administration across the country, the deadline would be impossible to meet for most states. Further, the proposal would reject untold absentee ballots cast legally by Election Day but arriving afterward.
“Not only is counting all the ballots in 24 hours impossible in many places, [in] lots of places ballots can arrive days after Election Day to count,” University of California, Irvine School of Law professor and occasional Slate contributor Richard Hasen told me.
Indeed, late-arriving absentee military ballots in Florida were a major point of contention during the contested presidential election of 2000, with Republicans at the time supporting the idea that late ballots be counted.
In addition to restricting the count itself, Scott’s bill would also force states to change their rules around the mail-in ballot process, including states that do all mail-in voting. “Any conflicting state laws would be preempted,” Scott’s communications director, Chris Hartline, told me about a series of provisions that would change how states operate mail-in balloting.
In many states, the changes would be practically impossible to implement in a mere six weeks. The five states that already conduct their elections almost entirely by mail appear to not meet Scott’s requirements. Four states are sending mail-in ballots to every active registered voter to try to prevent long lines at the polls and the spread of COVID-19, and many other states have ramped up mail-in voting to meet demand because of the pandemic. Indeed, many such mail-in votes have already been cast in states where early mail-in voting has begun, such as North Carolina. Scott’s bill would restrict this, creating new nationwide deadlines for applying for ballots that supersede current state deadlines and mandating nationwide signature matching, a practice that disproportionately invalidates votes from younger voters and people of color in enormous numbers.
Back in July, when Trump floated the possibility of canceling November’s Election Day, he was met with pushback from most in the GOP. While canceling Election Day appears to be a red line for Republican officials, many seem to have coalesced around Trump’s efforts to prevent a complete and accurate count. Scott’s bill is just another example. With Democrats controlling the House of Representatives, the legislation is a nonstarter. But it shows you exactly where the GOP’s head is at with 40 days left to go before the last votes are cast.
