What happens if not all ballots cast by mail arrive in time to be counted for the November elections?

Question

I know this is a worst-case scenario, but the fact is that these three issues will happen concurrently during election season:

1. Louis Dejoy, the new postmaster general and a major donor of Trump, has been accused that his agency is slowing down election mail by banning overtime, extra trips, etc. The bottom line is that delivery delays have been an issue lately.

2. Trump admits that he's "he's starving the U.S. Postal Service of money".

3. Due to the pandemic, I assume more voters than ever will vote by mail.

So....election day passes, all votes are counted, and a winner is declared, but there's a significant difference between the total number of registered voters that voted by mail and the total number of mail-in ballots that were actually received. At this point, somebody will complain.

What happens next?

Also, The Washington Post just published this article warning that the U.S. Postal Service recently sent detailed letters to 46 states and D.C. warning that it cannot guarantee all ballots cast by mail for the November election will arrive in time to be counted

Answer 1

So....election day passes, all votes are counted, and a winner is declared

Not quite. If the election goes terribly wrong, the likely results are that either no winner is declared, or multiple winners are declared. If only one winner is declared, the other candidate has no legitimate claim and the situation has been resolved. Washington Post Columnist Max Boot lays out one possible way this scenario could play out:

I recently took part in a “war game” to see what would happen under those circumstances. The session was organized by the Transition Integrity Project, a nonpartisan group founded by Rosa Brooks of Georgetown Law School and Nils Gilman of the Berggruen Institute. The scenario we were given predicted a narrow Biden victory in the electoral college: 278 to 260 ...

I was on Team Trump and, needless to say, we did not concede defeat. Instead, we went to work, ruthlessly and unscrupulously, utilizing every ounce of power at our disposal, to secure the 10 Electoral college votes to swing the election. We focused our attention on three of the swing states that Biden won in our scenario—Michigan, Wisconsin and Pennsylvania—because, in all three, Republicans control both branches of the legislature. Normally, the governor certifies the election results, and in all three states the governor is a Democrat. But there is nothing to prevent the legislature from certifying a different election outcome.

Something similar happened in the 1876 presidential election: Democrat Samuel J. Tilden was leading on Election Day in both the popular vote and in the electoral college, but the results were contested in three states. [Subsequent moves gave Republican Rutherford B.] Hayes a 185 to 184 majority in the electoral college, and the presidency along with it. - Washington Post, Opinion, July 6th 2020

When no/multiple winners are declared, the situation becomes near impossible to predict, with the Supreme Court, the court of public opinion, and multiple key individuals having the power to significantly influence the outcome at that point. But in such a case the advantage is with the incumbent, who wields a wide range of powers, in line with the old expression possession is 9/10 of the law.

Answer 2

What happens if not all ballots cast by mail arrive in time to be counted for the November elections?

Ballots not received in time will not be counted. The procedure may vary by state, but all ballots are official correspondence; therefore saved, late returned ballots will be unopened, placed in a box, and sealed.

The rules for "in time" vary by state. The Federal Voting Assistance Program provides a convenient map for Overseas Citizen Voter that includes rules and links that are useful for in-country voters, as well. Click on any state or territory to see the rules with regard to registration and requesting and returning ballots.

---

Using the information for Florida, one may see why the U.S. Postal Service (USPS) "cannot guarantee all ballots cast by mail for the November election will arrive in time to be counted".

For the General Election, a ballot request must be received by October 24, 2020. Within the U.S., the ballot must be returned by November 3, 2020. The local elections office could take a day or two to mail the ballot, the USPS could take 1 to 3 days each way (with no problems - my experience in Florida) delivering the ballot. If the voter waits a few days to mail the completed ballot, the ten days from request to return could easily expire. The ballot will not be counted.

However, if the voter is outside the U.S., the returned ballot need only be postmarked by November 3, 2020, and "received by the 10th day after the election" to be counted.

While the USPS "cannot guarantee ...", voters, by requesting, voting, and returning ballots early, can be assured their vote will be counted.

---

What happens next?

That depends on what happens on and after November 3, 2020. The National Conference of State Legislatures provides a timeline for The Electoral College. The most important date for this question is:

Dec. 8, 2020: Deadline for Resolving Election Disputes. All state recounts and court contests over presidential election results must be completed by this date.

Any significant problems that may arise during the election, have a deadline for resolution. After December 8, 2020, to the inauguration on January 20, 2021, the expected schedule continues.

Any remaining problems or lessons learned from the election, can then be dealt with by changing laws, federal or state.

---

Speculation

I speculate that in any suit against the USPS, the USPS wins.

Mail-in voting rules in 46 states may leave some ballots uncounted, USPS warns, August 15, 2020.

In recent weeks, postal service General Counsel Thomas Marshall penned letters warning that states may be over-estimating the speed with which ballots will move through the mail. If the post office is not afforded a few extra days of leeway to deliver ballots to the election offices, Marshall warned that late-arriving ballots could leave some voters disenfranchised.

U.S. Postal Service Provides Recommendations for Successful 2020 Election Mail Season, May 29, 2020.

Today the U.S. Postal Service (USPS) released a letter that is being sent to local and state election officials and state party officials around the country. This letter highlights key aspects of Election Mail delivery processes — and ways to help educate the public on what to expect when using the mail to vote.

[...]

The letter and the accompanying Publication 632, State and Local Election Mail — User’s Guide, are intended to provide boards of election and other election officials the tools needed to make the upcoming elections more successful when voting by mail. These guides are a follow-up to the more extensive 2020 Official Election Mail Kit (Kit 600), which was distributed to 11,500 election officials in March.

[...]

The Postal Service recommends that election officials use First-Class Mail, which is typically delivered in 2 to 5 days, for all Election Mail and to allow one week for delivery to voters. USPS further recommends election officials use Intelligent Mail barcodes for all Election Mail. The Postal Service has designed an Intelligent Mail barcode identifier specifically for ballots, to increase mailpiece visibility within the processing system. The identifier can be used by both the Postal Service and the mailer to track ballot deliveries and returns.

Having been advised their laws are incompatible with USPS service levels, the states have ample opportunity to take action to amend their laws or advise voters about when to return absentee ballots.

In a related example, H.R.8015 was "introduced on the floor of the House" on August 11, 2020 and, as of August 18, 2020, the text of the bill is not available.

H.R.8015 - To maintain prompt and reliable postal services during the COVID-19 health emergency, and for other purposes.

As of 08/18/2020 text has not been received for H.R.8015 - Delivering for America Act

Bills are generally sent to the Library of Congress from GPO, the Government Publishing Office, a day or two after they are introduced on the floor of the House or Senate. Delays can occur when there are a large number of bills to prepare or when a very large bill has to be printed.

If Congress cannot get the text of bills printed without delay, it is unrealistic to expect the USPS to deliver "a large number of [ballots]" without delay.

---

Applicable Code

3 U.S. Code § 2. Failure to make choice on prescribed day

Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.

3 U.S. Code § 5. Determination of controversy as to appointment of electors

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

For 2020, the "time fixed for the meeting of the electors" is December 14, "six days before" that time is December 8.

Answer 3

In the original design of the US electoral system, the Electoral College was meant to be the stop-gap against this kind of problem. Electors were expected to be (mostly) independent representatives, people who would recognize malfeasance, misconduct, or misrepresentation, and who would cast their electoral vote for the best interests of the nation, not the best interests of their party or of any individual. If they saw a broken election process, they would do their due diligence and give the presidency to the best-qualified candidate, regardless of the outcome of the (disrupted) election.

Of course, the Electoral College no longer serves that purpose — it has been taken over by the parties, ensuring that electors will not or cannot go against party lines — so the only feasible resolution to this problem lies in the courts. From Trump's various statements, I suspect this is his current aim: to so confuse, disrupt, and distort the election process that the election will ultimately become the focus of lawsuits and be decided in the Supreme Court, in the hopes that the Justices he installed will rule in his favor. The problem, of course, is that if he follows this plan and succeeds, but the GOP loses control of the Senate, Trump would almost certainly be impeached and removed from office shortly after his inauguration. Whichever way this plays out, the only thing Trump will succeed in doing is destroying the legitimacy of US democratic institutions.

Answer 4

The question is "what will happen if the winner is declared but not all mail-in ballots received?". Since it is about the USA, the answer is that the losing party will sue. This happened in 2000 when the cause to sue was much smaller. Moreover, the lawsuits will be filed in every state where this situation happens (and not only in one state as in 2000).

Answer 5

So....election day passes, all votes are counted, and a winner is declared, but there's a significant difference between the total number of registered mail-in voters and the total number of mail-in ballots that were actually received. At this point, somebody will complain.

Let's begin with the statement " a winner is declared". Who "declares" the winner? At the state and county level the official declaration is confined to the election tally, that is the number of votes for each candidate. Winner declarations are made by the media, politicians, public etc - none of who are "official". That said, the official declaration of the vote count is made by certification by county BOEs to the State (generally to the Secretary of State) who subsequently certifies (declares) the vote count weeks after election day. So begin by disabusing the notion that official declarations are made shortly after election day. Any pronouncements made in advance of certifications are based on interim results.

Next, there is no such thing as a registered mail-in voter per se. There are registered voters. There are people who actually vote (by what ever means). And there are always BIG differences between the number of voters and the number of registered voters. So it is not abnormal to observe "significant differences".

Any complaint (legal or otherwise) that there are "significant differences" between the number of mail-in-ballots and the number of registered voters is laughable. (Caveat: if there is a significant difference in that more mail-in-ballots were received than persons eligible (registered)... that would be a BIG issue, and cause for legitimate complaint)