Answering Senator Mike Lee’s Question

A month before the 2020 election, Republican Sen. Mike Lee (R-Utah) tweeted, “Democracy isn’t the objective; liberty, peace, and prospefity [sic] are. We want the human condition to flourish. Rank democracy can thwart that.”

If Lee isn’t a big fan of democracy, then his recently released texts with Mark Meadows, chief of staff to former president Donald Trump, show he isn’t a good judge of legal talent either. Shortly after the 2020 election, Lee repeatedly suggested that then-President Trump meet with attorney Sidney Powell, whom Lee found to be “a straight shooter.” When Powell proved too nuts even for Lee, he suggested the White House turn instead to John Eastman, who, Lee assured the White House, “has some really interesting research.”

Yet, among the craziness of his exchanges is a text that demonstrates that even a conservative with doubts about democracy can embrace voting rights when his candidate has lost an election. 

On Nov. 10, 2020, Lee texted Meadows:

I have a simple question: how many [vote by mail] ballots were tossed in PA and WI for not meeting the requirements of state law? I can’t find the stats anywhere. But in the primaries it was above the current margin of victory with much lower turnout. If they played games with that Trump has a really strong case.

Lee’s question is not simple, but it is important. Even without “games,” in virtually every election hundreds of thousands of mail-in ballots are rejected by election officials and remain uncounted. In 2020 that number exceeded 500,000 ballots, or 0.8% of all mail-in ballots cast in the election.

In too many instances these rejected ballots are the votes of citizens who did everything right but still ended up with the system rejecting their vote. Nearly one-third of all mail-in ballot rejections in 2020 were the result of election officials deciding that the signature on the outer envelope of the ballot did not match the signature on file for the voter. Most election officials tasked with “matching” these signatures received little or no training or guidance on how to conduct this comparison.

In other instances, small errors, like a missing date, incomplete address or mismatched signature could be easily fixed by the voter if an election official informed them of their error. Without this knowledge, the voter can’t do anything to salvage the vote they tried to cast, so their ballot ends up rejected.

The issue Lee refers to in his text to Meadows specifically relates to the timing of the receipt of mail-in ballots. Though there is variation, most states fall into one of two buckets when determining the date by which mail-in ballots must be returned. Some states will count ballots that are mailed and postmarked by Election Day, even if they are received a few days after the election. Other states require the ballots to be received by election officials by Election Day, regardless of when the voter put the ballot in the mail.

Both Wisconsin and Pennsylvania fall into this second camp — that is, ballots in those two states must be received by Election Day to be considered valid, even if the voter mailed and postmarked the ballot prior to Election Day. In 2020, a combination of the COVID-19 pandemic and delivery policies adopted by Trump’s Postmaster General Louis DeJoy led to unprecedented delays in the delivery of mail. As a result, lawsuits were filed in several states, including in Wisconsin and Pennsylvania, to require those states to count ballots mailed and postmarked by Election Day even if they arrived a few days later.

In both cases, these lawsuits were initially successful but Republicans fought to reverse those victories all the way to the U.S. Supreme Court. Ultimately, the Pennsylvania decision allowing a ballot receipt deadline extension stood, while the Wisconsin decision did not. Wisconsin, which was previously required to count mail-in ballots mailed and postmarked by the primary election day, returned to a ballot receipt deadline of Election Day for the November general election. Pennsylvania ultimately did not count late-received ballots once it became clear they would not affect the outcome of the election.

So when Lee asked Meadows how many ballots were “tossed in PA and WI for not meeting the requirements of state law,” he was referring to ballots his own party went all the way to the Supreme Court to try to keep from being counted. Only after his candidate of choice lost the election did Lee suggest that he might actually want them counted after all. 

But here’s the catch: only if those votes were for Trump. We don’t always see Republicans saying the quiet part out loud, but Lee’s text makes it plain and simple. Republicans are all for counting your votes, but only when their party is the winning team.