By MICHAEL H. SAHN //
Election Day, plus two: The votes are still being counted, with paper-thin margins in key states. The President of the United States wants the counting to stop here, but not there. The world waits.
“Democracy in action,” “every vote counts,” “all politics are local” … these timeless idioms have never been truer. We are witness to an historic election with an unprecedented national voter turnout. From a broad perspective, this proves we have a strong, vital democracy – America’s electorate is hardly apathetic.
While we exercised our fundamental voting rights in record numbers – the foundation of a constitutional government – the election shows we are a clearly divided nation. With U.S. Senate run-offs in Georgia and so many other loose ends, it may be months before we see how our federal government really shapes up for 2021.
Regardless of its composition, we must heed the words Abraham Lincoln shared in 1858, when he accepted Illinois Republicans’ nomination to run for the Senate: “A house divided against itself cannot stand.”
Tightly contested elections are nothing new, of course. In 1960, the Kennedy/Nixon election was decided by 112,827 votes, a margin of 0.1 percent giving Kennedy a slim electoral college victory. The winner of the 2000 Bush/Gore election was not determined until Dec. 12, when the U.S. Supreme Court punted the final vote certification back to Florida.
Here on Long Island, we have a long history of close (and drawn out) elections. The 2009 race for Nassau County executive wasn’t decided until weeks after Election Day, with all the recounts and intense absentee-ballot scrutiny; Tom Suozzi didn’t officially concede until December. In 2010, the 7th District State Senate race between Mineola Mayor Jack Martins and incumbent Sen. Craig Johnson finally landed in the Court of Appeals, which denied Johnson’s last-gasp request for a hand recount – five days before Christmas.
What’s new today is voters have so many ways to cast their ballots. In addition to traditional absentee voting by mail (popular among military personnel stationed away from home) and in-person voting, now we have early voting, also by mail and in person.
And of course, every state has its own voting rules and laws – and in some states, they vary by county. Some states require votes-by-mail to be received by Election Day; others say they must be postmarked by Election Day but can arrive later.
That’s just for starters. The timeframes and other rules for in-person early voting vary widely from state to state; New York only legalized early voting last year. The slapdash national approach has led to extensive state and federal litigation, with claims of illegal, unconstitutional and fraudulent practices raging.
Election-related litigation is nothing new, either. Someone, somewhere, will always be looking to sue over unfavorable election results or practices, and they should always be allowed to. Election fraud does happen. Legal remedies against it are important.
But the absence of national election policies and procedures only breeds legal challenges in local and national elections, sometimes without merit. At best, this delays the reporting of important election results. At worst, it fosters the narrative that America’s election processes cannot be trusted.
In recent days, state and federal courts have heard and issued rulings on a variety of challenges to election procedures. On Oct. 26, for instance, the U.S. Supreme Court declined to extend the absentee ballot deadline in Wisconsin (which Vice President Joe Biden ultimately flipped to blue), meaning all absentee ballots had to be submitted by 8 p.m. local time on Election Day.
No doubt, sometime soon we’ll have “electronic voting,” which will bring its own legal challenges.
This all creates confusion and leads to contradictory decisions in different state and federal courts. The Purcell Principal, as articulated by the SCOTUS, cautions lower courts against changing the rules just before elections, because it risks voter confusion – but this has not stopped the avalanche of court challenges before and during this election.
The Voting Rights Act of 1965 and its subsequent amendments were enacted to stop discriminatory voting practices and to protect each American’s fundamental right to vote. The Act prohibits state and local governments from imposing discriminatory voting laws, such as requiring literacy tests to vote or imposing poll taxes.
Given the increasing number of challenges to the piecemeal evolution of the voting process, it’s once again time for Congress to study up and create new laws that preserve voting rights across the nation – starting with uniform standards for different voting methods.
Laws that establish certainty in the process are as important as any substantive voting law. They will eliminate litigation asking the courts to decide who wins and who loses.
If we’ve learned anything from this election, it’s that our right to vote is being threatened, and we must act to preserve and protect it.
The 2020 presidential election came down to a handful of states and a few thousand votes; in the end, we get a president elected by the slimmest of margins. Every vote absolutely does count.
And the country will absolutely move on. Hopefully, we’ll be thinking about Lincoln’s admonition while we do.
Michael H. Sahn, Esq., is the managing member of Uniondale law firm Sahn Ward Coschignano, where he concentrates on zoning and land-use planning, real estate law and transactions, and corporate, municipal and environmental law. He also represents the firm’s clients in civil litigation and appeals.