ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Monday, October 19, 2020

The Mailbox Rule and Elections

Over on Twitter, where all serious scholarship happens these days,  NYU's Christopher Sprigman points out that about 1/3 of his colleagues list constitutional law as one of their areas of interest, which is about three times as many as list contracts law.  The same is likely true at the other top law schools, despite the fact many of the students in those law schools will draft and interpret contracts for a living and relatively few of them will practice constitutional law.

Mail Truck
But why should we have to choose?  Let's get a bit contractual on the Constitution.  There is a lot of litigation lately about the validity of ballots sent by mail.  As reported on NPR, and here in WaPo, a Michigan court ruled that ballots are valid if mailed by November 2nd, so long as they arrive within two weeks of election day. An intermediate appellate court reversed that ruling, saying that mail-in ballots must be received by election day.  

Bracketing constitutional issues about state control over election rules, why can't we just adopt a simple, uniform rule that will be good nationwide.  If the mailbox rule is good enough for contractual acceptances, why isn't it good enough for elections?  In both cases, the communication is timely and irrevocable once out of the control of the person sending the communication.  I can't see any downside to the rule in the election context that would not apply more forcefully in the contractual context.  In most elections, mail-in ballots will not make a different in the outcome.  This year, they will likely be crucial, but in states where the election is close, isn't it worthwhile to wait a few weeks to make sure we get the count right and count all ballots that were sent in before election day?

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This is particularly true in some Native American communities, such as the Navajo Nation, where some remote residents must travel for hours for mail service. On the other hand, those who have easy access to ballot drop-off boxes (not so in Texas thanks to the Governor's limiting them to a single ballot box per county) or mail service should mail or drop off their mail-in ballots as early as possible. This year in particular, the winner of the election should be confirmed as quickly as possible, to avoid unrest during a delay in counting ballots. Although I personally am willing to be patient and wait as long as several weeks for all the ballots to be counted, some others are likely to take advantage of protracted uncertainty about the final count. More important in my view than allowing receipt of ballots after Nov. 3 are state rules that allow authorities to start counting mail-in ballots before election day (although not releasing the count), so that they reduce the backlog by election day.

Posted by: CHARLES R CALLEROS | Oct 19, 2020 11:39:19 AM