In a countdown to the US Elections, TNL is publishing a special series by analyst George Court to explain how votes will be cast across the country. This piece looks at the voting and counting process, the different rules, when a winner might be known, possible legal challenges and if the electoral college could be manipulated to change the outcome.
Ways of voting
In 5 states, Colorado, Hawaii, Oregon, Utah and Washington, voting is entirely by mail. Registered voters are automatically sent their ballot in the post which they either send back in the mail or take and place into a drop box at various locations.
In most of the other 45 states plus Washington DC, people can vote in one of three ways:
- At a polling station on election day (All states + DC). Some counties use voting machines, others paper ballots. In some states, voters must show photo ID. In others, they must at least show non-photo ID. Some states that require ID still allow people who don’t show any to cast a provisional ballot, and there are some states that do not require any ID at all.
- At a polling station before election day, (early voting) (43 states +DC).
- To vote by mail/absentee. (All states + DC, in some form).
- Excuse and no excuse: Some states require voters to give a reason to vote by mail, others do not. This year, several states that require voters to give an excuse are allowing voters to cite Covid-19 as their excuse.
- Postal vote applications: In some states, voters have to request a postal vote application, in others all voters are sent a postal vote application automatically. This issue has been subject to fierce legal debate in several states, including in Texas.
- Once a voter receives their mail-in ballot: Once their ballot is mailed to them, the voter fills it in, signs a separate form declaring who they are, (some states also require a witness signature), sign it and then send the ballot and declaration back to their county election office. This can be done either by sending it in the post or by physically delivering it into an election dropbox. The number of drop boxes per county has also become contentious in Texas with the governor deciding there should only be 1 per county regardless of the county’s population. In Ohio, the Secretary of State’s decision to do something similar was struck down by the courts.
- Drop boxes: Drop boxes matter because they guarantee a mail-in vote once placed into it will be counted, whereas some voters worry that if they mail back their ballot, it may get lost or not arrive on time.
- When postal votes arrive with election officials: Once the mail-in vote arrives, the information on the voters’ declaration form is checked against the state’s record (this is the equivalent of a voter giving their name and/or ID to the polling station clerk and the clerk checking that the records match and that the voter is on the register). if everything is in order, the vote can then be counted. Currently, an issue in Pennsylvania is whether mail in votes that arrive with the declaration and ballot not separated should be counted.
- Deadlines: 32 states only count postal votes that arrive by the time polls close on election day. However, 18 states and Washington DC will count postal votes that arrive after the polls close, provided that the envelope is postmarked election day or earlier.
Counting of votes
Votes cast in early voting and on election day start being counted as soon as polls close. Postal votes are then either immediately or gradual over several days added into the count too. This is why this year could see it take longer than usual for votes to be counted and why rules about declaration signatures, witnesses signature requirements and others could be so crucial to the outcome.
In the primaries this year, hundreds of thousands of ballots were rejected because they didn’t meet certain requirements. In 2016, around 25% (32 million) voted by post. 1% of those ballots were rejected for various reasons, equalling almost 320,000 ballots. This year, around 40% perhaps more could vote by mail, that could be 50 million and probably more. If 1% of those ballots were rejected then that could be more than half a million rejected ballots (500,000+). The fear is it could be a higher percentage this year due to those not used to voting by mail making a mistake and confusion among some officials on which votes can or cannot be counted.
As seen from the TNL analysis of the 2016 race, Trump won by only a few thousand votes in three key states. Large numbers of rejected votes could not only effect the outcome, but effect people’s perception of whether the result in legitimate.
When will we know the result?
It depends how close things are but we could be looking at a few days, possibly even weeks. It may be difficult for even safe states to be called on election night as 60% of votes are expected to be cast in person either before or on election day, it will not be possible to project a winner until most of the 40% of mail in votes have been counted. However, there may be some clues on the night. Florida for example is able to start processing mail in votes 22 days before election day, meaning many postal votes can be included along with early and election day votes in the election night count. This means that if one of the candidates wins Florida easily, it may indicate a pattern in other swing states that might take a few more days to emerge as votes are counted.
Challenging the election results
Once all votes are counted, states have until a certain date (this varies state to state) to formally certify their results. There is in addition the deadline of 8th December for all states to resolve any electoral disputes and certify who their electors will be to ensure their states votes can be counted by Congress.
- Challenging the results before they are formally declared:In some states, including Florida, if a result is close and the difference between two candidates is a certain percentage, an automatic recount is conducted. In close states, given the significant number of postal votes and the various different requirements in different states over which votes can or cannot be counted it is possible that there could be legal action and the courts both in states and federal courts, perhaps even the US Supreme Court to rule on which ballots could be counted. These are the legal actions that could be taken by a campaign before the results are certified by states.
- Challenges after the results are formally declared: All states have decided that their electors will be appointed according to the election results held in their state on November 3rd. However, a state could change this process, including potentially between November 3rd and the December 8th deadline.
How? Here’s a full scenario.
A hypothetical illustration is being used to explain how a challenge to results may look. Let us assume the outcome comes down to one state where election day and early votes are counted first and postal votes trickle in for days afterwards. Furthermore, say that polling suggests more republicans will vote in person and more democrats will vote by mail turns out to be true. The votes counted on election night show Donald Trump with a small but clear lead; but then, over the next few days, as postal votes are counted, Biden takes the lead.
In response, Trump’s campaign then launches multiple legal actions to get certain postal votes cast invalidated. However, for the sake of this example, assume they fail and Joe Biden is declared the winner by election authorities. Let’s say that the President tweets the election was “rigged”; and local republicans who control both the state’s lower and upper houses and where there is a Republican Governor, (for example Ohio) agree and take action.
The state legislature could pass new legislation to ignore the election result citing voter fraud and declare their state’s electors will be the one’s pledged to Trump, not Biden. Then, let’s say the Republican Governor signs such a law and by December 8th, confirms the Trump electors who then meet on December 14th and vote for Donald Trump and Mike Pence which ensures their re-election.
Could this happen?
It is possible. However, much depends on two factors: the margin of victory and the willingness of Republicans in states where they control the legislature and governorships where Biden wins, to take action to overturn the election result in their state.
If results are close, they could try and justify their actions. Nonetheless, in the event of a clear or even landslide Biden win, it would be harder to justify. They would also have to factor in their own political prospects were they to overturn the election results. They, unlike Trump, will have to face voters again in either 2022 and 2024.
So their calculation is whether Donald Trump is worth saving? In addition, this scenario only comes into play only if the results are close and after all other legal challenges have been gone though. In addition, such actions would themselves also be subject to legal challenges.
States with Democrat governors and Republican legislatures: In these states, were Republican legislatures to change the laws regarding presidential electors, the governor could veto them. Even were the state legislature to find a way to overcome or move around such a veto and send Congress their own set of electors, the Governor could send their own electors, and congress recognises the electors sent by Governors. But again, even if the republicans found a way to succeed, would Trump be worth saving if he’s lost the election?
What if disputes roll on into January?
If for whatever reason, there is no President and Vice President-elect by Inauguration Day (January 20th 2021), the terms of the current President and Vice President end automatically and the Speaker of the House would become Acting President and they would then appoint a Vice President subject to congressional approval until a President and Vice President were fully appointed. But, this too could be subject to legal challenges were it actually to happen.
A key worry is a candidate, especially Donald Trump, declaring victory prematurely. Polling suggests 57% of Trump voters will vote on election day, just 25% of Biden voters will. Therefore, Trump could lead on election night only for Biden to win when postal votes are counted.
In a New York special election this year, the Republican had an election night lead of 30,000 votes. But once postal votes were counted, his lead was only 9,000. The Republican won, but this shows results can shift dramatically.
This is the dangerous scenario, where Trump uses the fact he appears to be ahead on election night even initially in strong Democrat states to declare victory and deem any votes counted after this point as invalid and thus cast doubt on the legitimacy of the election. However, none of this has any effect on the electoral or legal process. States will follow their electoral process and count the votes, however long it takes. There may be legal challenges, but a Presidential tweet in itself cannot prevent valid votes from being counted.
A final thought
We should be aware of these scenarios because they are possibilities, but they are still overall unlikely and could only happen in extreme circumstances, and some campaigns have perhaps talked them up to discourage voting. This should not happen. The second-part of this special series examines and analyses key congressional and state elections.
Stay tuned for more TNL updates as results come in on November 3rd and beyond!