Doesn’t Anyone in the Media Read the Actual Election Laws?

Election Resolution Judges
(h/t Lance Fisher and used under Attribution-ShareAlike 2.0 Generic [CC BY-SA 2.0])

Back in the day, when dinosaurs roamed the earth and all elections were conducted either with paper ballots or “pull the lever” machines, my high school government class was given an election season project. For the precinct around our high school, we were to do four things: (1) canvas the neighborhood to determine who was registered and who was not, (2) work to increase the number of registered voters, (3) try to get as many of these folks to the polls on election day as possible, and (4) report back to the teacher how it all went.

Shorter #4: It was a blast.

Oh, it was a lot of work, too. Lots of knocking on doors (and going back and back again when no one was home), and also lots of reading the elections laws. What were the deadlines? What did we have to do in order to be polling place observers, so that we could see who voted in the morning in order to start making calls or knocking on doors in the afternoon and evening? What were we allowed to do in the polling place, and what were we not allowed to do? Who would make the GOTV visits in the afternoon and early evening? Who had a driver’s license and a vehicle, so we could offer rides to the polls, if needed? Who could be available to babysit, if needed?

In a precinct that generally had turnout of around 30%, that year it hit 70%. We weren’t allowed to be advocates for a candidate or ballot proposition (this was a non-partisan school project, after all), but simply were trying to get as many folks as possible to the polls, and we did a damn good job. In the years that followed, I’m sure there were campaign strategists who looked at that number and figured it must have been a typo, because it never came close to that again.

Since high school, I’ve worked on a number of campaigns, from local school board stuff to Paul Simon’s presidential campaign and a bunch at every level in between. One thing I’ve never forgotten is simple: read the election law.

With all the “will we have a winner on Election Night?” blather, it seems few in the media have bothered to do that one very simple thing.

So let’s give it a try, OK? From the Missouri Revised Statutes, Chapter 115:

115.508. Certification of election prohibited prior to noon on Friday after election day.—Notwithstanding any other provision of law to the contrary, no election authority or verification board shall certify election results, as required under section 115.507, before noon on the Friday after election day.

What? You mean it’s illegal (at least in Missouri) for an election board – city, county, or state – to certify a winner before Friday?

115.507. Announcement of Results by verification board, contents, when due—abstract of votes to be official returns.—
1. Not later than the second Tuesday after the election, the verification board shall issue a statement announcing the results of each election held within its jurisdiction and shall certify the returns to each political subdivision and special district submitting a candidate or question at the election. The statement shall include a categorization of the number of regular and absentee votes cast in the election, and how those votes were cast; provided however, that absentee votes shall not be reported separately where such reporting would disclose how any single voter cast his or her vote. When absentee votes are not reported separately the statement shall include the reason why such reporting did not occur. Nothing in this section shall be construed to require the election authority to tabulate absentee ballots by precinct on election night.

What? You mean that each election jurisdiction has two weeks to submit their certification, and ballot counters don’t have to pull an all-nighter on election night?

115.430. Provisional ballots, used when, exceptions, procedure, counted when, how—rulemaking authority—free access system established—provisional ballot only used,when—no jurisdiction in state courts to extend polling hours.—
All provisional ballots cast by voters whose eligibility has been verified as provided in this section shall be counted in accordance with the rules governing ballot tabulation. Provisional ballots shall not be counted until all provisional ballots are determined either eligible or ineligible and all provisional ballots must be processed before the election is certified.

Here’s part of why you can’t certify a winner before Friday, and you get two weeks to finish the count. By Missouri state law, every individual provisional ballot has to be either accepted or rejected before ANY provisional ballots are actually tabulated and added to the regular count. If you get a lot of provisional ballots, or if there are lots of challenges to these ballots, this could take a while. And if you have both of those things, it *will* take a while.

What is reported on election night is — and always has been — unofficial. When you go to any state’s election website next Tuesday evening and frantically refresh the page to get the latest numbers, they will tell you that these results are unofficial. They aren’t official until at least a couple of days later, after every precinct has verified and counted all their provisional ballots, checked all their math, and filed a formal certification with their Secretary of State. Careful media voices may project a winner on election night, but it’s not official until the certification of the results is complete.

And at least in Missouri, that is not allowed to happen before the Friday after the election, and could be as much as two weeks after election day.

Look, I get it. I want to know who will win all kinds of different races as soon as anyone, but it’s not an automatic sign of any nefarious goings on if no clear winner is projected on Tuesday night or Wednesday morning. More than anything, it’s a sign that everyone from the election judge in your local polling place on up to the Secretary of State wants to be really sure that they got the count right before they declare it to be official.

I know that Donald Trump doesn’t know election law, or even the mechanics of how elections work once the polls close, and I have no illusions about educating him on that subject. I just wish the media would quit imitating his ignorance.

40 replies
  1. Ruthie says:

    “I just wish the media would quit imitating his ignorance.”

    Good luck with that.

    I was at the dentist and made the point to the hygienist that ballots are ALWAYS counted beyond election night and that the projections rely on statistical analysis of the number outstanding. Doing my part.

  2. Fraud Guy says:

    You had more fun than I did. As part of a fund-raising effort, our school was paid $25 for each precinct total reported to a news organization as soon as the counting was done. I sat around until 11pm to dutifully get the number promised me by the poll workers, who promptly left after sending their totals to the election board without telling me.

  3. Worried says:

    Thank you Peterr.

    I often wonder how many days it took to tally the election results in the early 19th century, or when so many territories recently became states.

    From McConnell and Graham, we now know hypocrisy is no barrier to the use of “power”.

    • pablo says:

      Counting the votes was pretty fast, but before telegraph letting Washington know the results took weeks.

  4. Pablo in the Gazebo says:

    All the rules and regulations you provide are unique to Missouri. Each state has its own set of guidelines and they can vary all over the place. When can a state start counting absentee ballots, how can those ballots be delivered, how long can the counting go on, rules on the envelop(s) about witnesses…it’s different from state to state. I have slim hope that in some states their governments will be any help at all in figuring this out. In fact in many cases just the opposite. My hope lies with local print media, your home town newspaper, to describe what you have to do to be sure your vote is counted. This sadly shrinking source of guidance for most of America is the only news that can be trusted. We walk out and pick it up every day because we grew up with it and we know it, we know the reporters and the photographers. We know the streets where the stories took place. We know the neighborhoods, good and bad. We trust their reporting. They should let us know how to be sure our vote is counted.
    That’s what i’m counting on.

  5. BeingThere says:

    Thanks Peterr.
    To your wish-list can we add that the media, or anyone, not using the term “late ballots”. This term is a deliberately ambiguous misinformation meme.

    Ballots cast/postmarked/mailed/delivered/whatever-is-the-state-law, by election date, _are_ valid – (deferring to those like Peterr who know their state’s election law details)
    Where there’s ‘delayed delivery of ballots’ or other shenanigans, they should be called ‘valid ballots delivered late’ or equivalent.

    Let the term ‘late ballots’ can be saved for like arguments with business promises re late pizza delivery – the time you placed the order vs. claims of the time it was written down, or the time it came out of the oven, or the time the delivery driver’s car arrived. (All praise and no complaints to the national/world pizza deliverers during these crazy times.)

  6. Teddy says:

    I do enjoy watching members of the media conglomerates act as if they are simply members of the public who need education about why this year might be different. “Tell us what we as the public can expect,” is a question Rachel Maddow asked one of her expert guests tonight. I, of course, yelled at the TV, “You’re not a member of the public, like I am. You’re a trusted gatekeeper embedded in corporate media. You need to learn an entirely different set of lessons about the ‘blue mirage’ and ‘red mirage’ of votes on Election Day.”

    Media stars are the biggest barrier to the public’s understanding of the sequence of what will happen on Election Day. Acting like they are simply members of the public means they don’t understand their unique role, and will probably blow it. Tim Russert’s 2000 whiteboard with FLORIDA written on it notwithstanding, there’s a special role being played here. It would help if they pretended to understand it.

  7. Eureka says:

    I love your high school story, Peterr. But now I have the sadz, realizing I won’t be going to the polls this year to follow up on my adult project of stamping out electioneering violations at my polling place. I’d brought my measuring tape — and close reading of election law, to identify the limits of their loopholes as to the layout of our location and pamphletting, the main problem — and spoke to a bunch of folks (all of whom readily agreed with my interpretations, and denied _ever_ having done what I described witnessing in the past). Later, while my back was turned to sign in, I saw out the corner of my eye some candidates’ reps reaching into the doorway of the polling room to snatch-away their illegally-placed literature.

    What I really want to know is if they have ceased placing it improperly, period, or are waiting for someone else to come around and catch them.

    • Rugger9 says:

      The short answer is “no” to placement. In CA, we still have “unofficial” ballot drop boxes in Orange County (Reaganland) where if the box isn’t there the shop owner puts it in a safe. This was after being warned.

  8. GKJames says:

    This highlights what to me has long been a mystery: knowing what we know about how Republicans operate, why have Democrats failed to do the local spadework necessary to get people to the polls? Why is it that, when a Republican state legislature enacts yet another law limiting the franchise, there is no organized street-level response to ensure that voters get the instructions and forms and IDs and whatnot that the law calls for?

  9. Garrett says:

    I doubt the idea that reporters do not know that election night results are unofficial, or that state law determines how states count votes and release results.

    I did a Google News search, “winner on election night”. Then I browsed through the results, looking for reference to state law.

    I quickly found examples referencing state law. I found no articles where reporters seemed not to know that election night results are unofficial.

    Here are some examples:

    • The U.S. Constitution grants state governments the authority to set up their own election processes … but most states give officials at least a week after Election Day to “certify” their final state-level results. Joe Walsh, at Forbes.
    • Some states, like Arizona, Florida, and North Carolina — all-important swing states to watch — have laws that allow them to begin processing mail-in ballots before Election Day itself Addy Baird, at BuzzFeed News.
    • because some rules have changed, and some haven’t [the second link goes to an article with “State Laws” in the title.] Miles Parks, at NPR.
    • some elections officials asked the legislature to change the law and allow them to verify the ballots before Election Day. So far, the request has not resulted in a change to the law Chuck DeVore, at Forbes.
    • Variation in laws among the states about how and when to count absentee ballots means that a final count could take days or weeks to complete.Rob Garver, at VOA
    • But in states like Pennsylvania, state lawmakers are still fighting over when to begin counting absentee ballots Joel Brown, at ABC11
    • election laws concerned with when and how to count those ballots are changing even now. Kate Storey, at Esquire

    Also HelloGiggles.

    Mackenzie Dunn, in a substantive discussion of how election night results are reported by the media, for the website HelloGiggles, tells her readers that state law affects the counting of votes: “Additionally, each state has a different set of laws and policies that affects how votes are counted.”

  10. BobCon says:

    As much as I hate to say anything nice about network news, I will say that the election data and analysis people working behind the scenes are generally very good, even at Fox — Karl Rove’s freakout in 2012 was based on their data people refusing to slant results to favor Romney the way Rove thought the numbers should be read.

    But the on camera people are of course a different story. I still remember John King endlessly fiddling with CNN’s map in 2016 and looking like a jet lagged American who just got off a flight in Kazakhstan trying to negotiate an all-Cyrillic ATM to convert 500 dollars into Tenge.

    Network anchors can’t think for themselves and there is going to be either a crazy level of tentativeness, where they struggle to explain the simplest math or geography, or unforced errors based on a complete misunderstanding of what they’re seeing and hearing, or both.

    The networks are incapable of gaming things out in order to manage the step by step progress of election night and the following days. They run on a patchwork of last second decisions and crazily complicated (and incomplete) list of what ifs. They steer their ships with a dozen hands on the wheel all reading their own maps.

    • vvv says:

      “… looking like a jet lagged American who just got off a flight in Kazakhstan ….”

      Ver’ n-i-i-ce!

  11. El Cid says:

    Look, I’m sure the KCB court is more than willing to write a few decisions on how the Founding Fathers’ real intentions were that any real or perceived or claimed Republican lead on election day be frozen in place.

  12. Savage Librarian says:

    In case anyone is wondering what is happening in Jacksonville, FL:

    “Duval County judge leading vote-counting board donated to Trump 12 times. That’s not allowed.”

    “[Brent] Shore also may have violated the rules for canvassing board members. Canvassing boards, which right now have been counting mail ballots prior to Election Day, are three-person boards with a county commissioner, an elections supervisor and led by a county judge. They are banned from “actively participating” in campaigns or supporting candidacies.”
    “Shore, who has taken an at-times caustic reaction to the media and to lawyers for the Duval Democratic Party, also led the board during the 2000 election when some 26,000 Duval votes for president were thrown out.”
    “And when Democratic lawyers asked to see duplicated ballots that would be counted as votes, Shore said they were accusing him of lying since he was reading off the duplicated ballots to them. The issue, he said, was one of trust, even though the lawyers had a right to request the ballots.”
    “The canvassing board reviews the voter-intent ballots, like ones where someone filled in multiple bubbles for the same race or used a checkmark instead of filling in a bubble, and a staffer fills out a new ballot with the board’s determinations. That ballot is then counted.”

    “Even though he and the other board members agreed to live-stream parts of the meetings, the board is still not showing those remade ballots.”

    “If a court rules the board has violated the state’s Sunshine Laws, then the court may invalidate all the vote-counting the board has done so far and force it to start over.”
    “It’s not only the appearance of partisanship that leads to lack of confidence in the election system that we should be concerned about,” said University of Florida political scientist Dan Smith. “In Duval County, it’s also the lack of transparency.”
    He continued, “People should expect more from people who are counting our votes.”

    • Savage Librarian says:

      Speaking of transparency, if you do an employee search on Jacksonville’s website, you will see that Caroline Wiles is listed as the Public Communications Officer in the Executive Office of the Mayor. Gosh, it seems like only yesterday when she was being escorted out of the White House after failing an FBI background check.

      That was in February 2017, less than a year after her mom, Susie Wiles, saved a seat for Natalia Veselnitskaya at the hearing on the Magnitsky Act in June 2016.

      So, I guess all that fingerprinting and all those checks and balances for regular employees don’t matter so much for employees of the mayor’s office. I wonder if that has anything to do with this:

      “…local political guru Susie Wiles, is purportedly telling Tallahassee folks that keeping Lenny Curry mayor is key to keeping Trump President. So expect a certain mayoral candidate to start thumping POTUS soon enough.”

      “Brother from Another Mother” – Folio Weekly, 1/29/19,21098

      • Savage Librarian says:

        Thanks, PJ. Looks like Glenn Greenwald resigned from the Intercept, too. Things are picking up.

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