Election Day 2020 is going to be a wild one.
There are two big reasons for this. The first is that Covid-19 has led an unprecedented number of Americans to use mail-in ballots, and different states have different procedures for counting them. This usually doesn’t matter, but since there are going to be so many mail-in ballots this year, it could cause some wonky fluctuations regarding which candidate appears to be leading in which states and when. It’s going to be tricky to navigate, and it’s likely to lead to a more protracted vote-counting process than we’ve seen in elections past.
The second reason is that President Trump is actively trying to steal a second term in office. Trailing in the polls, his campaign seems to have reasoned that his best chance to stay in power is to declare victory if he’s ahead on Tuesday night, arguing that ballots not counted by the end of Election Day are not valid, and then sue states who try to tabulate legally cast ballots after November 3rd. It’s an absurdly blatant effort to subvert democracy, but this is the state of things.
Absent a Biden landslide smothering Trump’s chances to claim he won before all the ballots are counted, Tuesday night is likely to be full of uncertainty, which leaves the results vulnerable to disinformation from Trump and others. To get a better sense of what to expect, we spoke to Charlotte Swasey, vice president of data and polling at Data For Progress, and the coordinator of the Election Night Integrity Project, a joint venture between DFP and VoteAmerica aimed at providing “responsible reporting and visualization during the 2020 general election.”
Here are a few key points to keep in mind:
We’re probably not going to know who won on election night
States counting ballots after Election Day is nothing new. It happens every cycle. But there’s usually enough information available on election night to determine who won. This isn’t likely to be the case this year, as states are contending with an influx of mail-in ballots, and are expected to exercise more caution than usual in processing results. So are the networks that will be reporting those results. “I think at this point the news outlets and the AP are sufficiently nervous about preemptive calls, and I don’t think we’re going to get it until the next day no matter what,” Swasey says.
Based on when states have indicated they’re going to release their results, Swasey estimates that we could have a call sometime late Wednesday morning or early Wednesday afternoon. “I think by noon on Wednesday we’ll have Florida, and we’ll probably have a decent amount from Georgia,” she says. “I don’t think Pennsylvania is going to be done. But I think we’ll also get Wisconsin, Minnesota, and Arizona — at least enough so that a call can be made either way.”
If Pennsylvania is the tipping point, however, we might not know who won until later this week, or *gulp* beyond.
Beware of early results from states that already began counting mail-in ballots
Arizona, Florida, Iowa, Montana, New Mexico, North Carolina, and Ohio are all expected to report their mail-in ballot results before their in-person Election Day ballot results. Because mail-in voters are more likely to favor Biden, the initial results from some of these key swing states could favor him, before swinging in Trump’s direction as they begin to report in-person results.
“The biggest thing to keep in your brain is how slow it’s going to be until we actually know anything,” Swasey says. “The first hour after polls close is this weird void where we have no more information. The states that have been pre-processing early votes are going to give us data maybe by like 8 p.m., but it still won’t be complete enough to say literally anything about the national state of the race. Anything you’re seeing on election night is conjecture, projection, and forecast — and even if it’s done really well, no one has complete information yet.”
…and of early results from states that aren’t permitted to count mail-in ballots until Election Day
This is where things get hairy. Crucial states like Michigan, Pennsylvania, and Wisconsin are not permitted to begin counting absentee ballots until Election Day. Why? Because Republican legislatures refused to amend election rules to account for the unprecedented number of mail-in ballots that resulted from the pandemic. What this means is that all three states are expected to swing in Trump’s favor on election night, and even into Wednesday, while millions of absentee ballots likely to favor Biden are still outstanding.
The political version of hell is scheduled for next Wednesday, when Dems are freaking out (and GOPers rejoicing) over vote totals that show Trump with large leads in Upper Midwestern states – but it's a mirage b/c millions of mail ballots have yet to be counted.
— Dave Wasserman (@Redistrict) October 29, 2020
Virginia is also expected to report in-person voting results first, which could give an early bump to Trump.
Trump will likely try to declare himself the winner anyway. Do not listen to him
Axios reported on Sunday that Trump is planning to declare himself the winner if it looks like he’s “ahead” on election night. This isn’t surprising. The president for months has been laying the groundwork to claim absentee ballots counted after Election Day are illegitimate. Both he and his campaign know this is the best chance he has to win. From The New York Times, on Saturday:
“Trump advisers said their best hope was if the president wins Ohio, and Florida is too close to call early in the night, depriving Mr. Biden of a swift victory and giving Mr. Trump the room to undermine the validity of uncounted mail-in ballots in the days after.”
Yes, Trump’s “best hope” is to undermine the validity of mail-in ballots counted after Election Day, in order to drum up doubt so he can potentially get the Supreme Court he packed with conservatives to hand him the election. Trump and his campaign haven’t been shy about this in the days leading up to the election. On Sunday, campaign spokesperson Jason Miller explicitly equated tabulating legally cast ballots with “stealing” the election.
Here's Jason Miller saying that counting all the ballots = stealing the election: pic.twitter.com/FMApbmVlRa
— The Recount (@therecount) November 1, 2020
Pennsylvania is going to be a mess
Michigan, Pennsylvania, and Wisconsin are the key states that are not permitted to count absentee ballots until Election Day, and where Trump is likely to cry fraud and attempt to contest the validity of ballots counted later this week. Wisconsin seems to have its business in order. Officials have indicated the state will have its count more or less wrapped up by early Wednesday morning. The same can’t be said for Michigan, where the count is expected to take a few days after Election Day. Pennsylvania is in even worse shape. Some of the state’s counties won’t be able to start processing absentee ballots until after Election Day, and in the best-case scenario the majority of ballots won’t be counted until Friday.
Pennsylvania could also be in for a monumental swing between election night and when the count is finished:
The pressure to shut down the PA vote count is going to be insane.
Even if the 538 forecast for PA proves accurate (Biden +5), given partisan disparities in mail-in voting, Trump could hold a 16 POINT lead by the end of Tue night.https://t.co/auZtvr1PuP pic.twitter.com/ErmMcjgDGn
— Justin Sandefur (@JustinSandefur) October 29, 2020
“Pennsylvania is kind of a nightmare state,” Swasey says. “I’m expecting that it’s going to be at least somewhat Trump-leaning the day of and that there’s going to be a really active dispute over counting the mail-in ballots and early votes at all.”
Trump has already said that he plans to “go in” to the state with lawyers after Election Day in order to prevent absentee votes from being counted. “I don’t think it’s fair that we have to wait for a long period of time after the election,” the president said. It goes without saying that in no way is waiting a few more days for election results “unfair,” certainly not compared to how unfair it would be to the residents who cast their ballots legally only to have their voices go unheard.
Pennsylvania Attorney General Josh Shapiro, a Democrat, took issue with the president’s comments, writing on Sunday that the state would “be happy to defeat you in court one more time.”
FACT CHECK: Our elections are over when all the votes are counted.
But if your lawyers want to try us, we’d be happy to defeat you in court one more time. https://t.co/mj6d8WLwvK
— Josh Shapiro (@JoshShapiroPA) November 2, 2020
In September, Pennsylvania’s Supreme Court ruled that the state should accept absentee ballots up to three days after Election Day as long as they were postmarked by Election Day, citing the pandemic and delays in the mail service. Pennsylvania Republicans were none too pleased, and appealed to the U.S. Supreme Court, arguing that the state Supreme Court could not override laws put in place by the state legislature. Absent Justice Amy Coney Barrett, in October the Supreme Court upheld the state Supreme Court’s ruling by a vote of 4-4. And last week, the Supreme Court shut down a plea by Republicans to reconsider, but left open the possibility that the case could be revisited after Election Day.
Democrats fear a Supreme Court that now includes Coney Barrett could overrule the state Supreme Court’s decision and invalidate legally cast absentee ballots. The potential justification, as Justice Brett Kavanaugh teased as part of a recent decision to restrict absentee votes in Wisconsin, doesn’t amount to much more than it would be nicer if everything could be wrapped up earlier. “States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” he wrote. Never mind democracy.
Though Pennsylvania is one of the most significant swing states and could determine the election, as far as tracking results on Election Day, Swasey recommends focusing your attention elsewhere. “What I’m looking at is other states on either side of it that could serve as indicators as to how the night is going and take some of that focus off of disputing Pennsylvania,” she says. “I would feel a lot better watching states like Iowa, Texas, Florida, and Georgia for indicators of a strong Biden night, rather than trying to tease anything from Pennsylvania, where we’re just not going to be able to tell what is a real lead.”
Remember that America is a democracy. Every vote deserves to be counted, no matter what Trump and Republicans say
The crux of Trump’s closing argument — that votes not counted by Election Day are invalid — is fundamentally anti-American and has absolutely no basis in law, reality, or any of the other tenets of democracy that Trump has routinely ignored over the course of his four years in office. There is no evidence of widespread voter fraud, no evidence the election is rigged by Democrats, and no evidence that mail-in ballots are illegitimate. Nor is there any law stating that a winner must be declared on Election Day. Trump is trying to undermine faith in democracy and con his way into a second term. As his advisers told the Times on Saturday, his “best hope” is to sow confusion in order to make it easier for him to steal the election. Don’t be confused.
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