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As Election Day nears, some states are still determining voting rules

With only two weeks before the election, the rules around voting in some states are still being determined. On Monday, the U.S. Supreme Court couldn’t agree whether to stop Pennsylvania from counting mail-in ballots postmarked by November 3rd but that arrive after Election Day. William Brangham talks to Nate Persily of Stanford Law School about this important decision and other looming cases.

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  • Judy Woodruff:

    It is two weeks out from Election Day, and the rules around voting in certain states are still being contested, including a split decision yesterday from the U.S. Supreme Court.

    William Brangham has more on the story.

  • William Brangham:

    That's right, Judy.

    Yesterday, in a 4-to-4 split, the Supreme Court of the United States couldn't agree whether to stop Pennsylvania, which is a major swing state, whether they should be blocked from counting mail-in ballots that arrive after Election Day, as long as those ballots were postmarked by Election Day or earlier.

    For more on this decision and other looming cases, I'm joined now by Nate Persily of Stanford University Law School. He's the co-founder of the Healthy Elections Project, which tracks coronavirus-related election litigation.

    And he joins me now.

    Nate, very good to have you on the "NewsHour."

    Let's talk initially about this Pennsylvania ruling.

    The Democrats in Pennsylvania said, because of the pandemic, we want to give a three-day grace period. So, if a voter mails in their ballot, we should count that as legit if it's postmarked before Election Day, even if it gets here a little bit late. Republicans said no. The Supreme Court couldn't decide, so that the Democrats' position stands.

    What do you make of this ruling?

  • Nate Persily:

    Well, it is quite extraordinary that we have not only a decision this close to the election, but a 4-4 decision from the U.S. Supreme Court in a high-profile election case.

    So it does raise the stakes for the current controversy and confirmation process over Amy Coney Barrett.

    But the decision itself, as you said, leaves in place what the Pennsylvania Supreme Court said, which is that, because of the right to vote in the Pennsylvania Constitution, they thought it proper to allow late-arriving absentee ballots to count for the presidential and other elections.

  • William Brangham:

    So, as a signal both to Pennsylvania voters — they now know they have this extra couple of days — is this also to be seen as a signal to other states that are also currently fighting over extensions of deadlines on all manner of election related matters?

  • Nate Persily:

    What this is, is a signal to the state supreme courts in other states, because what was at issue was the claim that the Republicans made that the Pennsylvania Supreme Court, by sort of unilaterally extending the deadline, was, in a sense, behaving like the legislature, and that violated the U.S. Constitution.

    And the Supreme Court said — well, it gave a mixed signal, but four justices said that the Pennsylvania Supreme Court's decision should probably be overruled. Four said, we're going to let it stand. And, as a result of that tie, they let it stand.

    And so other state supreme courts, other state courts that are considering other similar kinds of changes to the election laws in their states now have a signal from the Supreme Court that, at least as long as there are eight justices, that those decisions may stand.

  • William Brangham:

    This — as you were saying before, this obviously shines a brighter light on the arrival, the impending arrival of Justice Coney Barrett.

    Is it just assumed that she will side with the conservative in cases like this? What do we know about her jurisprudence about voting matters?

  • Nate Persily:

    I don't think we know for sure which way she would side, but, generally, she considers herself a textualist, an originalist, looking at the words in the Constitution very strictly.

    And so the provision of the Constitution which is at issue in this case is whether, as Article 2, Section 1 says, each state shall determine, in such manner as the legislature thereof shall determine. And so the idea is, does the state legislature have kind of special power that even a state Supreme Court possibly can't modify?

    And so that is what the more conservative justices on the court believed. And perhaps she would be in their camp.

  • William Brangham:

    If the election count is drawn out, does that worry you?

    We have heard the president say that, if he's not declared the winner on election night, that is de facto evidence that there is fraud in this process. Do you worry about it sort of drawing out this process of counting all these ballots in Pennsylvania and elsewhere?

  • Nate Persily:

    We need to understand that no election has been completely finalized on election night.

    We have always had millions of ballots that have been outstanding. What makes this election different is that we could have as many as 50 percent of the ballots that are cast being cast by mail. That could be 75 to 80 million ballots that will be cast by mail.

    And so we may have to wait a little bit longer, but it's better to get the result right than to get it done fast.

    You are right, however, that the more that we are in limbo, the more concern that people will have that some candidate may declare premature victory, or that there will be allegations of fraud or misdeeds in the absentee balloting process.

    So, that's — in a very thin-skinned political environment in which we're living right now, that's the concern, is that there will be a lot conflict over those absentee ballots if it goes into overtime.

  • William Brangham:

    So, talk to the voters who are out there.

    We know millions of people have already voted. Many people are sitting on mail-in ballots that are in their house, debating, fill this out, mail it in, go vote early, go vote in-person.

    If people are seeing these cases and these ongoing fights in a lot of different states, what would you counsel them to do to guarantee the safety of — that their vote gets counted?

  • Nate Persily:

    Vote as soon as you can.

    I think that's the message everybody should be sending right now, which is that don't wait until Election Day if you're going to vote in-person. If you can vote in-person early, please do so. If you're going to vote by mail, make sure you send it in immediately, so that you don't — are not victim to, say, difficulties with the Postal Service delivering your ballot.

    Also, in some states, you can track your ballot. So there's ballot tracking software that states have made available to see whether your vote has been received. And then, if there are mistakes in your ballot, if you live in one of those states where it gives you an opportunity to correct those mistakes, make sure to avail yourself of that.

    But the key thing is to read the instructions on the ballot and to mail it in early.

  • William Brangham:

    Nate Persily of Stanford University Law School, thank you very much.

    And great to have you. We look forward to talking with you more as this election progresses.

  • Nate Persily:

    Thanks very much.

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