What to Know in Washington: Provisional Ballots May Play Role

If the U.S. is still waiting to learn who the president will be days or even weeks after Tuesday’s election, provisional ballots are likely to be at the center of any disputes.

They are the ballots cast by voters whose eligibility is questioned for some reason. Those ballots are set aside and held for a period of days after the election while workers determine whether they should be counted.

Experts say the number of provisional ballots this year may set a record, exceeding the 2.7 million cast in 2012 and almost 2.5 million cast in 2016, in part because some voters who requested ballots by mail are showing up at polls to vote in person. That could lead to late results in key battleground states such as Pennsylvania — where President Donald Trump won by only 44,292 votes in 2016 — if the race is close and the source of challenges and litigation.

“It’s just another one of those things that plays into the unusual nature of this election,” G. Terry Madonna, director of the Center for Politics and Public Affairs at Franklin and Marshall College in Pennsylvania, said of provisional ballots.

Provisional ballots have come into play in the past. Democrat John Kerry held off conceding the 2004 presidential race to Republican George W. Bush until the morning after the election because he waited until it was clear the 157,714 provisional ballots cast in Ohio couldn’t change the outcome.

In 2016, Trump carried Arizona by 91,234 votes, and there were 102,510 provisional ballots, according to the U.S. Election Assistance Commission. Pennsylvania had 26,451 provisionals, and that was before the commonwealth expanded voting by mail last year.

Greater use of mailed ballots, coupled with disruptions in mail service, may contribute to the bumper crop of provisional ballots. After initially urging voters to request mail-in ballots in response to the pandemic, Democratic leaders have been telling people to vote in person or deliver the ballot to an elections office or an approved drop box to avoid the risk of it being disqualified on technical grounds or having its delivery delayed by the U.S. Postal Service. Read more from Mark Niquette.

Photographer: David Paul Morris/Bloomberg
Voters who requested mail-in ballots but opt to vote in person could lead to more provisional ballots.

USPS Cites Covid, Holiday for Record Delays: The U.S. Postal Service delivered 80.85% of first-class mail on time for the week ending Oct. 23, compared with previous week’s figure of 85.58%, according to a news release. The agency listed factors including high mail volume, Covid-19 impacts, the Oct. 12 federal holiday and ongoing efforts to prioritize ballots for the Nov. 3 election. The on-time rate is the lowest of the year, according to the Save the Post Office website that tracks the agency. Read more from Todd Shields.

  • Separately, a federal appeals court ordered Minnesota election officials to segregate mail-in ballots that arrive after Nov. 3 in case a future court order requires such votes to be purged from the count. Two Republican electors in Minnesota are challenging the state’s plan to accept mail-in ballots up to a week after Election Day as long as they’re postmarked on time — an extension the state put in place to account for an expected flood of absentee voting during the pandemic as well as mail delays. Read more from Erik Larson.

BGOV’s Downballot Races to Watch—Reddit AMA: Join Bloomberg Government’s elections guru Greg Giroux this afternoon on Reddit for an AMA on the congressional elections, where he’ll take questions on the races to watch. Follow his AMA here at 2 p.m. today.

Politics & Policy

Biden Win Would Offer Path to Kill Pipeline: Days after taking office, Trump cleared the way for construction of an oil pipeline in the Midwest that had been the focus of months of opposition by climate activists, celebrities and Native Americans. Now opponents of the Dakota Access Pipeline are pressuring Joe Biden to take the extraordinary step of returning the favor should he win the White House. Analysts said they couldn’t recall a president shutting down an operating pipeline before, which is why its being viewed as a litmus test of how far he’d go to appease environmentalists who have supported him. Read more from Ari Natter.

Biden Pledges Not to ‘Extort’ South Korea: Biden pledged not to use the threat of cutting U.S. troop levels in South Korea as a bargaining chip, after the Trump administration demanded Seoul pay far more for American protection. Biden said if he wins the U.S. election next week, he won’t be “extorting Seoul with reckless threats to remove our troops,” according to a special contribution he made to South Korea’s Yonhap News Agency published today. Read more from Jon Herskovitz.

Trump’s China Scorecard Shows Many Defeats: Trump ran for office pledging to rewrite the U.S.’s economic ties with Beijing, which he blamed for hollowing out America’s manufacturing base and impoverishing its workers. But his four years in the White House have shown limited impact on the metrics he laid out. U.S. companies cite much the same concerns—and the same growth objectives—with regard to China today as they did when Trump took office. The unprecedented trade war that Trump launched, breaking GOP free-trade orthodoxy along the way, has ended up costing American factory jobs, not creating them, economists claim. The state support for Chinese enterprises that Trump pledged to confront remains intact.

Trump’s term has, however, had a notable impact on American attitudes toward China. In time, that could prove the dynamic that affects economic ties in ways the current president has struggled to achieve. And it underscores that Washington’s policy on China is forever changed, regardless of who wins next Tuesday’s election. Read more from Jenny Leonard.

Health-Care on the Ballot in Several States: Big money is betting on health-care initiatives in California, Oregon, and Colorado where voters are being asked Nov. 3 to add taxes on vaping, mandate that doctors always be on site when dialysis centers are open, and approve $5.5 billion in bonds for the sole stem cell research funding agency in the country. Tens of millions of dollars are fueling arguments over what to fund and why “because, essentially, people are more interested in health-care initiatives,” said Arturo Vargas Bustamante, associate professor in the Department of Health Policy and Management at the University of California, Los Angeles. Read more from Joyce E. Cutler.

Gerrymander Power on the Line: A shift toward independent redistricting commissions helped spur national political parties to spend record cash in the hope of controlling the next congressional redistricting. “The outcomes in just a few races in a few states will determine the Republican Party’s chances of winning congressional majorities for the next decade. And we’re fighting like hell to win,” Republican State Leadership Committee President Austin Chambers said in an email. His group raised $23 million in the third quarter and is targeting 115 districts that could hold the keys to a 136-seat swing in the U.S. House.

Democrats are fighting money with money. The Democratic Legislative Campaign Committee has pledged to spend $50 million in state races this cycle—more than six times what it spent in 2010. Read more from Alex Ebert.

More Elections & Campaigns

Biden Courts Latino Voters as Tie-Breakers: Biden appealed to Hispanic voters in Florida, a closely divided battleground state where a win next week would give him the presidency. “The heart and soul of the country is at stake right here in Florida. It’s up to you. You hold the key. If Florida goes blue, it’s over,” Biden said in a neighborhood in Broward County, which stretches south from Fort Lauderdale toward Miami and is a key source of Democratic votes in the state. Read more from Jennifer Epstein.

Facebook Says Technical Hiccups Improperly Blocked Campaign Ads: Facebook revealed yesterday how internal technical glitches disrupted the delivery of some ads from the Biden and Trump campaigns, but said it made changes to resolve those hiccups in the run-up to the November election. The social media giant’s admission followed complaints from the Biden camp about how thousands of its ads were blocked. Facebook said in a blog post it spotted “unanticipated issues” affecting both campaigns, including technical flaws that caused a number of ads to be “paused improperly.” Read more from Sarah Frier.

Trump’s Social Media Order Defeats Legal Challenge: The Trump administration defeated a challenge by Rock the Vote and Voto Latino to a recent executive order targeting social media companies that fact-check the president’s posts about the election, when a federal judge said yesterday that the get-out-the-vote groups lacked standing to bring the case. Judge William H. Orrick said the groups couldn’t show the order regulated Facebook, Twitter, or another social media website “in any way” or “credibly” threatened them with prosecution. Read more from Mike Leonard.

BGOV OnPoint: Section 230 Internet Shield Faces Bipartisan Attacks.

Zeta Disrupts Early Voting in Georgia: Hurricane Zeta caused disruptions to early voting across the South yesterday, including in the key battleground states of Georgia and North Carolina. Zeta, now a tropical storm, knocked out power to more than 1 million homes and businesses as early in-person voting enters a final stretch with five days to go until Election Day. Friday is Georgia’s last day to vote while voters in North Carolina have until Saturday. Read more from Misyrlena Egkolfopoulou and Joe Ryan.

More Hawaiians Voted Early Than All of 2016: Early voting in Hawaii has already surpassed the total number of ballots cast in the state in the 2016 election. Data from the U.S. Elections Project, which tracks early voting, found Hawaii has seen turnout hit 104.5% of its total from the last election. More than half of all registered voters in Hawaii have already sent in their ballots, topping the record for the total number of votes cast in the state for a general election. Read more from Emma Kinery.

The Coronavirus Pandemic

U.S. Sets Daily Virus Case Record: New U.S. cases topped 86,000, setting a new daily record, as the outbreak intensifies ahead of next week’s presidential election. Read more from Bloomberg News.

U.S. Buying Gowns from Untested Makers: Several U.S. companies that won almost half a billion dollars in government contracts to make hospital gowns appear to have too few workers and not enough factory space to complete the job when the awards were made, according to a Bloomberg Law analysis. At least 11 contractors and subcontractors began making protective gear only after the pandemic began, according to press releases and news reports. Of the 15 primary contractors, eight had never received a federal contract prior to 2020, according to federal government contracting records. The Defense Department says contractors went through a rigorous process and met stringent criteria.

Still, members of Congress are raising questions. “Some of those contracts have been to companies that have very little experience with producing that kind of equipment, that the standards have not always been up to par, and it’s created some real challenges,” Sen. Jeanne Shaheen (D-N.H.) said during a Senate Armed Services committee hearing Oct 1. Read more from Shira Stein.

Covid Relief Laws May Bolster ACA Legal Case: Republicans may have hurt their own legal case against Obamacare by repeatedly expanding on and amending the signature health law since 2017, most recently in their response to the coronavirus pandemic. “You can’t build on the ACA’s protections for the Covid bills if the act doesn’t exist,” said Abbe Gluck, a professor of law and the founding faculty director of the Solomon Center for Health Law and Policy at Yale Law School.

The U.S. Supreme Court will assess legal arguments on the constitutionality of the Affordable Care Act on Nov. 10. What Congress intended to do with the ACA is a central line of dispute in the high stakes case, and the pandemic has given supporters of the law a new opportunity to prove it was meant to stay. Read more from Lydia Wheeler.

New Projection Shows Higher Death Toll: The Institute for Health Metrics and Evaluation, an influential modeling group, is projecting a higher death toll in the U.S. amid the surge in Covid cases and hospitalizations. The group is now projecting about 405,000 deaths due to the virus by Feb. 1, representing a nearly 20,000 increase from a prior projection of 386,000. “Europe is seeing a surge right now and Europe is ahead about a month from the United States,” said Ali Mokdad, a professor of health metrics sciences with IHME. “So basically we are watching what would unfold here in the United States.” Read more.

CDC Evictions Moratorium Upheld by Judge: A federal judge ruled against landlord groups trying to block the U.S. Centers for Disease Control and Prevention’s national moratorium on evictions amid the coronavirus crisis. U.S. District Judge J.P. Boulee in Atlanta yesterday rejected a motion for a preliminary injunction brought by the New Civil Liberties Alliance and National Apartment Association, which represents some 85,000 landlords responsible for 10 million rental units. The judge said the public interest in curtailing the spread of Covid outweighed the landlords’ economic interest. Read more from Chris Dolmetsch.

What Else to Know Today

Trump Rule Leads Contractors to Cut Training: Trump’s recent attempt to curb corporate diversity training will linger even if he loses Tuesday’s election to Biden. Already, federal contractors are unsure of what they can say about race. More than 300 events, training programs, research projects and other diversity-related activities have been delayed or canceled because of concern about a Sept. 22 executive order aimed at banning federal contractors and agencies from using terms in diversity training that the administration considers divisive and illegal, according to the African American Policy Forum, a social justice think tank. A Labor Department official said last week that the agency’s already received more than 100 complaints via a government hotline to report possible violations. Read more from Paige Smith and Jeff Green.

Hackers Plan More Attacks on U.S. Hospitals: A Russia-based ransomware group responsible for a new wave of attacks against U.S. hospitals is laying the groundwork to cripple at least ten more, according to the cybersecurity firm Prevailion. Prevailion’s analysis comes a day after the FBI and two other federal agencies issued a warning about an imminent and credible threat to hospitals and health-care providers from cyberattacks, including ransomware capable of locking entire computer networks. The hacking group responsible has already hit at least nine hospitals in three weeks, crippling critical computer systems and demanding multimillion-dollar ransoms. Read more from Alyza Sebenius, William Turton and Michael Riley.

Insurers Must Post Out-of-Pocket Medical Costs: Health insurers will have to post on the internet personalized out-of-pocket costs to patients under a new rule finalized yesterday. Insurance plans will also be required to make their in-network negotiated rates with doctors and allowable out-of-network rates available to the public, according to the multiagency rule. They will be required to post their negotiated pharmaceutical prices and the historical net prices for all their covered drugs. Read more from Shira Stein, Lydia Wheeler and John Tozzi.

  • These regulatory efforts to help consumers know the cost of their health care up front may be a lasting legacy of the Trump administration. The regulations have broad support among patient rights advocates and employers, signaling there’s a chance they could stick around regardless of who wins the presidential election and as long as courts continue to uphold them. Read more from Sara Hansard and Lydia Wheeler .

How the Google Case Could Play Out: Google and the Justice Department are set to face each other in court today for the first time since the government sued the company for illegally monopolizing internet search. The hearing marks the first time attorneys for Google and the government will come together to start mapping out the the litigation process. It will set the stage for what’s shaping up to be a drawn-out court battle that could ultimately weaken Google’s gatekeeper position over the web if the government is successful. Vicky Graham lays out how to follow the case as it winds its way through federal court.

  • Meanwhile, the Federal Trade Commission’s impending decision on whether to sue Facebook for antitrust violations also carries the equally important consideration of where to do so. Unlike its Justice Department counterpart, the FTC’s Bureau of Competition has the choice of bringing the case via its in-house administrative court or to file a complaint in federal district court. Read more from Victoria Graham.

737 Jet Crash Victims Demand U.S. Records: The relatives of the 157 people who died in the crash of a Boeing 737 Max in Ethiopia are demanding more records from U.S. safety agencies, according to a pair of letters sent on the second anniversary of another accident involving the plane. A letter to the National Transportation Safety Board, which assisted in the investigation of both crashes, accused it of an “unreasonable pro-secrecy stance.” Alan Levin has more.

Gray Wolf Protections Stripped, Stirring Lawsuit Threats: The Interior Department announced yesterday it will strip endangered species protections from the gray wolf. Environmental groups vowed to challenge the decision in court, saying it violates the Endangered Species Act by ignoring the “best available science.” If Democrat Joe Biden wins the presidency, his administration could seek to overturn the move. “Today’s action reflects the Trump administration’s continued commitment to species conservation based on the parameters of the law and the best scientific and commercial data available,” said Interior Secretary David Bernhardt. Stephen Lee and Kellie Lunney have more.

Administration Appeals Court Order on Visa Ban: The Trump administration is appealing a California federal court’s Oct. 1 ruling that blocked the departments of State and Homeland Security from barring entry to the U.S. for certain temporary work visa holders. In their filing, U.S. Justice Department lawyers signaled they’ll ask the San Francisco-based U.S. Court of Appeals for the Ninth Circuit to reinstate Trump’s proclamation in full, Genevieve Douglas reports.

To contact the reporters on this story: Zachary Sherwood in Washington at zsherwood@bgov.com; Brandon Lee in Washington at blee@bgov.com

To contact the editors responsible for this story: Giuseppe Macri at gmacri@bgov.com; Loren Duggan at lduggan@bgov.com; Michaela Ross at mross@bgov.com