Still waiting for a winner? Blame outdated mail-in ballot counting laws in seven states

As Americans woke up Wednesday wondering who their next president would be, delayed vote counting in several states – particularly battlegrounds like Pennsylvania and Wisconsin – kept them from an answer.

More than 65 million voters this year cast mail-in or absentee ballots. But the laws in seven states prevented election officials from counting many of them until Election Day. Votes that could have been tallied in advance sat in unopened envelopes until Tuesday morning.

As counting drags on, USA TODAY asked election experts across the country why these states still wait until the last minute.

Those interviewed, including law professors and Denver’s former head of elections, said no one reason drove the decisions. But most agreed on a few things. 

The rules were written at a time when absentee voting was very limited and elections officials needed little time to tally the mailed-in ballots. States also kept the ballots sealed to prevent tampering, especially in the days before electric scanning machines, said Edward Foley, director of election law at Ohio State University’s Moritz College of Law.

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And doing so ensured against someone leaking the results early, a concern some people still harbor. 

"Nothing good can come from early counting," said Bruce Ledewitz, a professor at the Duquesne University School of Law in Pittsburgh.

But other states – with both Republican and Democrat leadership – have for decades allowed officials to start counting those ballots early. And none has fallen victim to early leaks of absentee vote tallies, said Lawrence Norden, director of the Brennan Center for Justice’s Election Reform Program at NYU Law School. 

The machines that scan mail-in ballots don’t tally a total until someone runs that query after polls are closed, according to Amber McReynolds, CEO of the National Vote at Home Institute and former director of elections for the city and county of Denver, Colorado. State laws set harsh penalties for any official caught sharing absentee ballot information early.

The overwhelming reason most states had these rules on the books was simply that they never anticipated mail-in voting becoming as widespread as it was this year. 

“The main expectation was that almost everybody would vote on this one day,” Foley said. 

Typically, poll workers would be able to find downtime during Election Day to count the small number of absentee ballots, he said.

“That model,” Foley said, “doesn’t make any sense in a world of no-excuse vote-by-mail,” which was available in 34 states plus Washington, D.C., before COVID-19 and expanded elsewhere as a result of the pandemic. 

In Pennsylvania, where nearly 2.5 million ballots have been returned by mail, the count was expected to take days to complete. As of early Wednesday, about 1.4 million remained to be counted, and many of those from Democrat-friendly Philadelphia and its collar counties.

In suburban Montgomery County, officials said they would be counting ballots around the clock. Even still, a statewide total may not be available until the end of the week. 

Pennsylvania Democrats introduced bills this year into the Republican-controlled state Legislature to allow the early opening and verification of mail-in ballots.

Despite initial bipartisan support, the effort died after state Republicans demanded scaling back other voting provisions, such as the number of available drop boxes for mail-in ballots.

Ledewitz pointed out that Republicans quickly voted to allow all Pennsylvanians to vote by mail earlier this year. Ultimately, he said, counting ballots through the end of the week should not lead to any voter disenfranchisement, it will just take longer than the public would like.

The situation looks less dire in Wisconsin and Michigan, where overnight counting allowed officials to report about 95% of estimated ballots from both states by Wednesday morning. Both showing a slight edge for Democrat Joe Biden.

The experts said there was no reason for states to still stick with these outdated policies, except partisan politics.

“There honestly is no valid reason,” McReynolds said. “All they’re doing is adding stress to an already stressful situation.”

Prior to this election cycle, mail-in voting wasn’t a partisan issue, Norden said. 

“Now it’s become sort of a political football,” he said.