Take voter intent into account

There is one safe bet regarding the upcoming presidential election: If vote totals in any of the states are close, there will be controversy over how ballots were handled. That will be so whether President Donald Trump or Joe Biden appears to have the edge.

Ballot battles are nothing new, of course. Many people remember the infamous “hanging chads” argument over votes in Florida during the election 20 years ago. That will seem mild this year, unless we are sadly mistaken.

Much of the disagreement this time around will be because of the enormous number of ballots that will be cast by mail. Half of all votes, perhaps even more, are likely to be handled that way because of the COVID-19 epidemic. A variety of problems, including whether all ballots dropped in the mail actually are received to be counted, can be expected.

But we already know, based on how mail-in ballots were handled in the past, that there will be controversy over whether voters have handled the process properly – and legally.

Illegible handwriting is one reason mailed-in ballots have been rejected in the past. Uncertainty over whether marks on ballots comply with state rules has come into play.

Both factors and more will be the basis of controversy on and after Nov. 3.

What should local and state election officials do?

Few states seem to have detailed rules in place. Where such requirements exist, they should be enforced. For example, if a state requires – not requests but mandates – that voters fill in boxes or circles beside candidates’ names in order to vote for them, ballots with names circled should not be counted. If they are, election officials risk being accused of favoring one candidate over another.

Ideally, rules that make the intent of the voter paramount would be in place. Again to cite the example above, if a voter circles names rather than filling in boxes, his or her intent is clear and should be the deciding factor under such an “intent” system.

But rules are rules and, again, election officials who deviate from them will be accused of favoritism. So will those who insist on full compliance with voting requirements, unfortunately.

How will the courts rule if and when election challenges come before them? Neither state nor federal courts offer much firm guidance on that – specifically on whether voter intent trumps following the rules.

All the more reason, then, for states to have in place firm, detailed rules that do take voter intent into account. It is too late to make that happen for this election, but state legislators throughout the nation should undertake the task next year. Technology and the possibility of future circumstances that prompt many voters to mail their ballots make such action mandatory.