02 November 2020 20:39
What US election day – and the days after – will look like in 2020 Election night in America is likely to look much different this year. A surge of Americans are casting their ballots by mail, which may mean it will take longer for election officials to count votes. There is little unusual about this – even though news networks typically project a winner based on their analysis on election night, states always continue to count ballots after election day and state deadlines to give official results aren't until weeks after election day. But Donald Trump has repeatedly said no votes should be counted after 3 November and Republicans have waged an aggressive campaign to block states from counting ballots that arrive after that day. In a close race, there are likely to be aggressive court fights across the country that could shape the outcome of the election.
To get a sense of how the days after 3 November could play out, the Guardian spoke with three leading experts: Edward Foley, a law professor at Ohio State University; Charles Stewart, a political science professor at MIT; and Franita Tolson, a law professor at the University of Southern California. Edward Foley: We can never have an official winner on election night. The answer to that may be yes, depending on how things break out in terms of the different states and the votes. But the answer is we might not even have a projected winner if it breaks sort of the other way given the vote counting process. It's election night and the polls close. Charles Stewart: In many places, Florida being the best example, there's going to be an assembly of all this early voting and mail voting counting that's going on. So within half an hour or an hour of the poll closures, there's going to be a big dump in many states of what the early and mail voting totals were. In a normal night … by 11pm, certainly midnight, we would have had, in most places around the country, 90% of the vote counted by then. In most states, the pace of counting and reporting is going to be slowed by a few hours. In some states, they're going to be feeding more ballots into scanners after the polls close, and that's going to take some time. Then there's going to be a couple of states, with Pennsylvania being the notable example, where … election day … They've already said they're hopeful to get the entire count done by Friday. Play Video 6:07 Which swing states could decide the US election? The fact that they can't do anything ahead of election day is really going to be a killer for the election officials there. I think a lot of people I talk to have a hard time understanding why exactly it's going to take longer. And that's why there's not going to be a strong correlation between the percentage of how many mail ballots a state or city has and how long a delay might be. Most states are going to allow jurisdictions to do this kind of verification early. So even if they're only allowed to do the counting on election day, in many cases they're going to be doing it on high-speed scanners that will go through thousands of ballots an hour. This is why I've been saying we're gonna know more than you think on election night. You're not in the camp that it's going to take days or weeks to count all of these mail-in ballots? You never know if a judge will just shut down counting of mail ballots. What do those next couple of days look like? It's like days of sheer boredom punctuated by moments of sheer terror. It's like the random stuff that happens in the election canvas that's going to get people's hearts racing. What kind of legal challenges are we likely to see in the days after the election? Franita Tolson: I anticipate once we get to the counting stage, you'll probably have some litigation around ballots that have been rejected [as well as ballots] somebody thinks should be rejected. I do think that because this is a year where so many people are voting by mail, that's going to be a likely source of litigation. There are people who say the president has just appointed a new justice to the supreme court in the hope that she will rule in his favor in any election dispute. I do think the chief justice is mindful enough of the stakes where he's going to do his best to avoid [having the court] determine the outcome of this presidential election. It was really the first time in our lifetime we had seen a presidential vote count go into weeks, without really knowing who the winner is. But it's also true that because of 2000, I think the courts will be reluctant to resolve a dispute that is outcome determinative. States obviously can't count forever. From a national perspective, the key dates are the ones that Congress sets as part of the electoral college process, the most important of which is 14 December, that's the date the electors meet. Six days before that date, Tuesday 8 December, is something called the safe harbor deadline, which is advantageous for states that they meet it. What that safe harbor means is Congress promises not to second-guess the states' own determination of its results of the popular vote if the state reaches that determination by that deadline. There's another condition – states have to use laws that are on the books by 3 November, they can't change the rules for counting votes after they've been cast. Foley: If Pennsylvania were to not complete the counting of its votes by 14 December, it would give the legislature an invitation to step in and say "We've gotta have electors on 14 December. If we can't do it by a popular vote, we're just going to have to do it by legislative appointment, so that we have the official electors in Pennsylvania on 14 December." That's why I think it's very dangerous for the vote counting process in Pennsylvania to miss that deadline. If there's only one submission of electoral votes from any state, that submission must be counted unless rejected by both houses of Congress. If you have one submission that purports to be based on appointment of electors by the state legislature, and then you have a second submission that purports to be based on a tally of the popular vote, and perhaps signed by the governor, you could have these rival submissions that go to Congress and Congress will have to figure out which submission counts.