This fall, most states are likely to see a massive surge in absentee voting. The significantly greater burdens absentee ballots impose on election administration, compared to in-person voting, are not widely appreciated. Unless certain key dates in the election calendar are changed to take this unprecedented surge into account, the structural integrity and legitimacy of the election could be called into doubt.

The date changes suggested here have three specific objectives. First, to enable as many absentee ballots as possible to be counted on (rather than after) Election Night. If tens of thousands of votes cannot be counted until many days after the election, with the front-runner on Election Night turning out to lose, this increases the risk of the loser and his supporters declaring the process “rigged.” Minimizing that risk must be a key focal point of election-administration this fall. Second, to give election officials enough time to complete the complicated task of processing all these ballots fairly and properly. Third, to give voters an adequate opportunity to vote in the novel circumstances this fall might pose.

The dates changes identified in this essay involve state law and the federal law that governs the final stage of the presidential election, The Electoral Count Act. The date the electoral college votes should be pushed back to accommodate the longer time states are likely to need to process properly levels of absentee voting that might be an order of magnitude greater than in normal times.

Pildes, Richard H., Accommodating a Massive Surge in Absentee Voting (May 28, 2020). University of Chicago Law Review Online (2020 Forthcoming), Available at SSRN: https://ssrn.com/abstract=361316

Richard H. Pildes


Richard Pildes is the Sudler Family Professor of Constitutional Law at NYU Law. He is one of the nation’s leading scholars of constitutional law and a specialist in legal issues concerning democracy. A former law clerk to Justice Thurgood Marshall, he has been elected into the American Academy of Arts and Sciences and the American Law Institute, and has also received recognition as a Guggenheim Fellow and a Carnegie Scholar. In dozens of articles and his acclaimed casebook, The Law of Democracy, he has helped create an entirely new field of study in the law schools.


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