Federal law requires an election day, not an election week

OPINION:

In the age of instant communication and same-day delivery, it is somewhat remarkable that the world’s most advanced democracy still struggles to count ballots in a timely manner.

California gets much attention for its slow-rolling election results, but the problem is national. More than one-third of states, red and blue alike, continue tallying votes that arrive after Election Day.

Look no further than the capital region for other examples. The District of Columbia, unsurprisingly, joins California in allowing ballots to trickle in for a full week after Election Day. Maryland keeps counting late arrivals for 10 days after the election. Virginia permits a more reasonable three-day window.

Last month, praise and hysteria were expressed regarding President Trump’s executive order on election integrity, which focused on citizenship verification, an essential and overdue reform.

Core to restoring trust in election outcomes is ensuring votes are counted promptly. Mr. Trump’s executive order states that the Justice Department should take appropriate action — meaning litigation — against states that count ballots received after Election Day for federal elections. Federal election dollars to states will be tied to this.

Predictably, the usual suspects are already decrying this as an attack on democracy and “voter suppression.” Yet Mr. Trump is not making up new laws here; he is enforcing existing laws.

In October, the 5th U.S. Circuit Court of Appeals ruled that it is illegal for Mississippi to count ballots arriving after Election Day. Last month, the court declined a petition to rehear the case. Mississippi counted late arrivals up to five days afterward. This court finding was a straightforward reading of federal election law, which sets the national day for elections as the first Tuesday after the first Monday in November.

Building on that court precedent, Rep. Darrell Issa, California Republican, and Judicial Watch sued California in March to require counting only ballots that arrive by Election Day.

“Federal law requires an Election Day – not an ‘Election Week,’” Judicial Watch President Tom Fitton said in announcing the lawsuit. “California’s counting of ballots that arrive a full seven days after Election Day is unlawful, encourages fraud, and undermines voter confidence in election outcomes.”

Other nations manage to run efficient elections. The White House notes that Denmark and Sweden restrict mail-in voting to people unable to vote in person and don’t count late-arriving ballots. If these bastions of liberal governance can impose such restrictions, surely the United States can do the same without violating human rights.

To be clear, Mr. Trump’s order does not prevent vote counting from continuing after Election Day. It simply mandates that ballots arrive by Election Day. Preventing last-minute ballot deliveries could likely curb the practice of ballot harvesting. As documented in my book, “The Myth of Voter Suppression,” absentee ballot harvesting has been the single biggest source of proven election fraud, even leading to overturned races, including a congressional election in 2018.

Even those dismissing fraud concerns should recognize that delayed counts fuel grievances. Resolving elections promptly is the best way to inoculate the system against baseless allegations.

Nevertheless, in the United States, no-excuse absentee voting is popular. People love convenience. It is the only election administration issue where the left tends to poll well. The public overwhelmingly backs conservatives on voter ID and removing the names of deceased registrants from the voter rolls, sensible measures that stir panic among Democrats.

Voting is a right. Mail voting is a convenience and a privilege. It is not unreasonable to require that ballots be submitted on time.

According to the National Conference of State Legislatures, Illinois and Utah count ballots up to 14 days after Election Day. However, ballots must be postmarked by Election Day in all cases.

More understandably, Alaska, which has unique geographic challenges, caps it for mail-in ballots arriving 10 days after an election. New York and Oregon allow a full week, New Jersey six days, West Virginia five, and Nevada, Ohio, Kansas, Massachusetts and Virginia, three to four days. Washington state, oddly, requires ballots to be postmarked by Election Day but doesn’t specify a deadline for their arrival.

Every Trump executive order is destined to be litigated, and this one will be no different. Still, the courts have already weighed in on this specific aspect. The 5th Circuit ruling is a clear sign that the Supreme Court will likely uphold the principle that ballots must be received, not just mailed, by Election Day.

The sanctity of the ballot box depends not just on who votes but also on how and when those votes are counted. The future of American democracy demands clarity, finality and, above all, confidence in the process. That begins with restoring Election Day — just one day, not a rolling, weeks-long tally subject to post hoc reversals and endless controversy.

• Fred Lucas, author of “The Myth of Voter Suppression: The Left’s Assault on Clean Elections,” is the manager of the Investigative Reporting Project at The Daily Signal.