It's late to fight over voting rules, but they're doing it anyway

Once the election cycle begins, you probably shouldn’t attempt to change the rules for what counts as a vote, or how the electoral votes get allocated.

That doesn’t seem like a controversial idea, and yet examples of attempts to change the rules are piling up as the 2024 presidential campaign enters the final stretch.

Under current laws, 18 states accept and count a mailed ballot if it is received after Election Day but postmarked on or before Election Day. Among the key swing states of this cycle, Arizona, Georgia, Michigan, North Carolina, Pennsylvania and Wisconsin all require ballots to arrive by the closing time of polls on Election Day. In Nevada, absentee ballots "must be received by 5 p.m. on the fourth day following the election if postmarked by Election Day. Ballots with unclear postmarks received by the third day following the election are deemed to have been postmarked on or before Election Day."

The National Conference of State Legislatures notes, "because what constitutes a postmark is changing and less mail gets truly postmarked, many states will accept an Intelligent Mail bar code (IMb) as evidence."

But the Republican National Committee and the Mississippi Republican Party, aligned with the Trump campaign, are arguing in court that no absentee ballot that arrives after Election Day in that state should be counted, even if it is postmarked on Election Day or earlier.

Why take up this fight in red-state Mississippi, where a win for Donald Trump is hardly in doubt? Probably because the GOP is looking for friendly judges and dreaming of an expedited process resulting in a Supreme Court win that could gum up mail-in rules in swing states.

At the end of July, U.S. District Judge Louis Guirola Jr. (appointed by President George W. Bush) ruled that Mississippi’s mandate is "consistent with federal law and does not conflict with the Elections Clause, the Electors’ Clause, or the election-day statutes."

But the RNC and the state party are appealing that decision. Judges in the U.S. Court of Appeals for the 5th Circuit, The Post reported, "did not say how soon they would rule but noted that the U.S. Supreme Court has expressed reservations about courts changing voting rules in the run-up to an election."

And with good reason! October is a terrible time to decide, at the last minute, that any absentee ballot must arrive before or on Election Day to be counted. (With that said, it’s always a good idea to send those absentee and early-voting ballots in as soon as possible.)

In Pennsylvania, state law requires mail-in ballots to be returned within two envelopes — an inner "secrecy envelope" for the ballot and an outer mailing envelope. The exterior envelope must be signed and dated. The left-leaning American Civil Liberties Union of Pennsylvania and the Public Interest Law Center argue that the dating requirement violates the state constitution, and they are urging the state Supreme Court to step in quickly, contending that the failure to date the envelope is an "inconsequential error."

Pity the poor Pennsylvania elections officials — in a swing state that will be under intense scrutiny on Nov. 5 — who could see the law on what constitutes a valid ballot change, just weeks before the election.

Let us also note that the Trump campaign spent much of September in an unsuccessful last-ditch effort to change the way Nebraska allocates its electoral votes. Forty-eight states allocate their electoral votes based upon winner-take-all. Maine and Nebraska award one electoral vote for each congressional district won, even if that winner didn’t receive the most votes statewide. For a long stretch, this was just a matter of political trivia, as Nebraska (with five votes) was solidly Republican (except for 2008) and Maine (with four votes) was solidly Democratic.

But Nebraska’s 2nd Congressional District, encompassing Omaha, is growing less reliably Republican. In 2020, Joe Biden won the district with 52% to Trump’s 45%, and polling indicates a similar outcome this year. A recent New York Times-Siena College poll finds Harris ahead in that district, 52-43, while a separate CNN poll has it 53-42.

When Trump ally Sen. Lindsey Graham (R-S.C.) met with more than a dozen Republican members of Nebraska’s legislature on Sept. 18, he urged them to pass legislation switching to winner-take-all — a push backed by the state’s Republican governor, Jim Pillen. But their effort fell three votes short of breaking the legislature’s filibuster. (Please note the irony of some Democrats rooting for the filibuster in the Nebraska legislature while others pledge to eliminate it in the U.S. Senate.)

Mike McDonnell was one of the Nebraska Republican lawmakers who was unpersuaded. "This just did not seem fair," he said. "If we’re going to go ahead and change [the rules] in the state of Nebraska, I think we should do it midterm. I think we should do it two years before the presidential election."

The GOP’s attempted Nebraska maneuver, along with the late push for an earlier deadline for absentee ballots, is not the hallmark of a campaign that believes it’s cruising to victory.

It isn’t difficult to find Trump supporters who are convinced their guy is going to win handily. The fact that Republicans are putting such time and effort into trying to win five electoral votes in Nebraska instead of four suggests that they’re feeling anything but confident.