Mail-in vote disputes will be over when ballots are mailed and when they arrive: Judge Napolitano

'There is no one election for president, there are 52 elections,' he said

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Mail-in ballots that arrive after Election Day could lead to legal disputes over the November election results, according to Fox News senior judicial analyst Judge Andrew Napolitano.

“There is no one election for president, there are 52 elections,” the host of "Liberty File" on Fox Nation told “America’s Newsroom” on Tuesday.

“I am counting Puerto Rico and the District of Columbia and each of those jurisdictions run their own election. Some of those jurisdictions let you mail in a ballot as late as November 2nd. That’s Monday — that’s the day before election day so it is supposed to arrive before election day." Napolitano said. "The Constitution says there is only one day for an election. You can’t vote after the election.

“That’s going to be the dispute. When was this mailed and when did it arrive. When the states wrote these laws, they gave the voters way too much time in which to cast these ballots. That’s the essence of this Wall Street Journal complaint.”


Napolitano was responding to a Wall Street Journal op-ed titled, "Will Courts Pick the Next President," in which the newspaper's Editorial board writes, "If the election is close, the fallout could make Bush v. Gore look like an ice-cream social."

"If the presidential election is decided by a whisker, with Donald Trump or Joe Biden leading by some thousands of votes in a few states, a court ruling could prove decisive. The pivotal jurisdictions will be flooded with Republican and Democratic lawyers, and the resulting chaos could resemble the 2000 Florida recount, with smudged postmarks as the new hanging chads," The Wall Street Journal Editorial board wrote.

Election officials in key general election battleground states are noticing a surge of requests for absentee ballots by Democrats — upending a trend of Republicans in some crucial states typically dominating voting by absentee ballot through the mail.

The trend began this spring, with the primary season upended as the coronavirus pandemic swept the nation. With serious health concerns of voting in person at polling stations, many states took moves to make it easier to vote by absentee ballot — by mail or by depositing the ballots in a secure drop box.

A recent USA Today/ Suffolk University national poll found that 56% of Republicans said they would vote in person on Election Day, compared with just 26% among Democrats. The poll indicated that Democrats are more than twice as likely than Republicans to vote by absentee ballot or mail.


Responding to The Wall Street Journal op-ed pointing out that voters in 10 states are able to request absentee ballots on Nov. 2, just one day before the election, Napolitano said, "We have to be wary about this and if the states are interested in secure elections they will change their rules, get ballots into people's hands, and tell them the ballots have to be in by 10 days before the election day, otherwise we aren't going to be able to count them."

Fox News' Paul Steinhauser contributed to this report.