The 2020 election season is in full swing. Our previous EPPN Election Series pieces have highlighted how voters can safely and successfully cast their ballots and some of the barriers to voter access that exist around the country. As the American people begin the process of electing the president and the next Congress, we now hope to explain what voters can expect in the days and weeks following Election Day. No two elections are ever the same. The 2000 presidential election dragged on for weeks due to issues in one state: Florida. By contrast, the results of the 2004, 2008, and 2012 elections were known within a few hours of polls closing across the country. The 2016 election took a bit longer, but even then, we knew who had won the election by early the next morning. Nothing is 100 percent certain about the 2020 race, but it would be prudent for voters to expect that we will not know the winner of the presidential election on November 3, 2020. Now let’s go step-by-step into the vote counting process to show you why.
What Happens When the Polls Close?
Levels of anticipation and anxiety will surely be sky high on the evening on Tuesday, November 3. As polls close on the East Coast and points further west, Americans will sit in front of their televisions and computer screens to watch the vote count trickle in for the results of the presidential election. As the votes are counted and the results announced some states will be “called” for either President Trump or former Vice President Biden depending upon the demographics and the number of votes left to be counted in those states. Even so, it is important to note these “calls,” or “projections,” as some media outlets will refer to them, are not the official result. Votes will continue to be counted even in states that have been called by media organizations.
In most elections, the majority of votes are cast in person, either early or on Election Day itself. All of the votes are then counted, and results announced on the evening of Election Day. Due to the COVID-19 pandemic, this election is not like most elections. Fears of COVID have prompted massive surges in the number of voters requesting mail-in ballots. While mail-in ballots in all 50 states and the District of Columbia count just the same as an in-person vote (contrary to the popular myth that states only count mail-in ballots if the result is close), postal ballots do require verification processes that differ from that of in-person ballots. This process usually involves a name and signature check that authenticate the voter’s identity.
So why does this mean election results may be delayed this year?
Many states allow local election officials to begin the process of verifying mail-in ballots any number of days *before* election day, to ensure both that they are ready to be counted once the polls close and that voters can “cure” their ballots, or correct them, if any mistakes were made. States that allow election officials to verify mail-in ballots before Election Day, such as Florida, will likely report almost all their results within a few hours of polls closing on November 3.
However, there are 14 states that do not allow election officials to begin this verification process until Election Day itself. Since mail-in voting will see a substantial increase this year, it is almost certain that we will not receive enough information on election night itself to make solid projections about the winner of the presidential election in these 14 states. These 14 states will, however, announce the in-person votes they received during in-person early voting (if they allow early voting) and from those who voted in person on Election Day itself. It is important to note this will not be a complete count. These 14 states will likely still have millions of uncounted mail-in ballots left to verify, tabulate, and announce.
That ultimately may not matter if the result is clear in enough swing states that allow the mail-in vote verification process to take place before Election Day for the presidential race to be called. There may well still be closely contested state and local races, however, that will take weeks to conclusively determine, as we have seen in recent primary races and in the 2018 midterms. As we saw in both the 2020 primary races and the 2018 midterms, delayed results are not an indication of a problem. To the contrary, the delays demonstrated that election officials were doing their jobs and thoroughly counting and checking each ballot. This may be frustrating for all of us eagerly awaiting election results, but it is likely a sign that the checks and balances in the system are working.
For the 2020 presidential election results, some of the states that are most likely to determine which candidate can reach 270 votes needed to win will need at least a few days – if not weeks – to process the results: the crucial swing states of Michigan and Pennsylvania are among the 14 states that do not allow mail-in vote processing until Election Day itself. If the results in other states are inconclusive, we may not know the winner of the presidential election until Michigan and Pennsylvania complete their counts, and that could take either days or weeks. Even if results are called Election Day, mail-in ballots will continue to be counted not only to get the full count for the presidential race, but to count votes for all races, including key Congressional, state, and local races. To reiterate, we should expect to wait a few days or weeks for accurate election results to come in.
The National Conference of State Legislatures has compiled a handy guide to inform voters about when mail-in vote processing can begin in all 50 states and the District of Columbia.
What if the Election is Disputed?
While we are waiting for the official election results, we should also expect litigation. The Transition Integrity Project, a bipartisan group of academics and former government officials, conducted “war games” earlier this summer that delineated possible crisis scenarios of the 2020 election and arrived at an ominous conclusion: “We assess with a high degree of likelihood that November’s elections will be marked by a chaotic legal and political landscape.” We have already seen lawsuits from both campaigns, and we expect there to be additional litigation across the country.
In a contested election, battleground states with divided governments and inconclusive election results may send conflicting certificates of election to Congress. For example, if mail-in ballots were still being counted weeks after Election Day without a clear winner, the Republican-controlled state legislature in Pennsylvania might send a certificate of election from the Republican slate of electors to Congress while the Democratic governor might send a rival certificate from the Democratic slate.
If this were to happen, the Electoral Count Act would be invoked. This law directs the House and Senate to separately debate and vote on the merits of electoral vote certificates in order to determine which certificate would be formally counted. However, the law does not define what makes an electoral vote legitimate for congressional counting. The law’s defect may thus worsen a post-election crisis, especially if we have split control of Congress after the next election.
What if neither candidate concedes?
It has been 28 years since a presidential incumbent lost re-election, and only four incumbents have lost re-election in the past century. All defeated incumbents have departed gracefully, but in contemporary times in which claims of electoral illegitimacy and voter fraud have circulated and been leveled by prominent politicians, election law experts have warned about a disorderly transfer of presidential power. The scenario of a president losing an election and refusing to yield power to a successor has never materialized, a resounding testament to strong democratic norms and the durability of the rule of law in the United States. Similarly, challengers have always conceded their races in presidential elections. But if either candidate refused to concede, there is reason to believe that institutional and constitutional safeguards would prevail.
One major concern would be if either candidate calls upon supporters to engage in direct action. This could happen while votes are still being counted, while litigation is playing out in the courts, or even after a decision is made. The risk of societal instability is real, especially given the number of Americans who already distrust our democratic processes.
There are other risks, as well, such as an uneven transition period, the critical period when a new Presidential Administration forms, and which typically ensures some degree of coherent and continuous U.S. policy at a key moment. We may see contested elections and litigation that would affect the outcome. We may see increased tensions, inflammatory rhetoric, and widespread protests. Other scenarios are possible as well.
In the post-election period, it will be essential for trusted civil society and faith organizations like The Episcopal Church to respond with wisdom and patience. As the Office of Government Relations and The Episcopal Church, we will find trusted sources to keep you updated on what is occurring; please check back regularly for updates. We pray that our Church can always be a voice for peace and justice. We pray for a free and fair election, and we pray that all Americans accept the result of the election. We should also call upon both major political parties to do the same and encourage politicians in both parties to speak out in support of our electoral process as well.