What If It’s Close on Election Day?

- CATHO INSTITUTE - Nov 2, 2020 -

Ilya Shapiro -

We can all hope that the presidential election goes off without major hitches and that a winner emerges through the normal process of counting ballots. But even if nothing nefarious happens, close races in key states may not allow us to know a winner on Election Day, or even the next day. The pandemic has led to changes in election administration that have led to an unprecedented number of absentee and mail-in ballots, which in some states don't get counted until polls close on regular in-person voting. Even if everything goes smoothly, recounts may be triggered, either automatic or at the request of the losing side, according to state law. And then, of course, the results may not be beyond what lawyers call "the margin of litigation." Here's a sketch of what we can expect to see.

I. Framework for Electing a President

The Constitution assigns each state Electoral College votes equivalent to the total number of their congressional representatives (House and Senate), plus three for the District of Columbia. Each state (plus Congress and the city council for D.C.) runs its own system for picking electors, as set out in Article II, Section 1 of the Constitution. Election Day itself, the Tuesday after the first Monday in November, is set by federal statute -- but that's just the federal deadline, with all states allowing some form of absentee voting by mail and most allowing in-person early voting. In all states but North Dakota, people must register to vote, though 21 states and D.C. allow Election Day registration.

Most states begin counting in-person votes as polls close and finish counting within a day. Absentee ballots are different; although tallies cannot be released until after polls close, many states begin processing absentee ballots upon receipt or at a set time before Election Day begins. During the presidential primaries, states like New York experienced incredibly long delays counting the unusually high number of mail-in ballots. Provisional ballots -- papers filled out by voters who are not on a polling place voter roll, cannot show ID where required, or are otherwise of questionable eligibility -- are counted last, after investigation into each ballot.

Each state's executive branch, typically through the secretary of state, is responsible for certifying the results of the presidential election. They must send certificates to the national archivist, with copies to Congress. Under federal law, states must certify their electoral count by December 8. Also by federal law, electors must meet "on the first Monday after the second Wednesday in December next following their appointment.” This year, that means December 14. If electors are not selected through the election, state legislatures may do so in another manner, according to state law in place on Election Day. This statutory deadline contributed to the Supreme Court's decision to stop the recount in Florida in 2000.

Whether selected by voters or legislature, the electors must meet to formally pick a president and vice president. They do not come to Washington, however, but cast their votes in their own states. Thirty-three states and D.C. have laws that either punish electors who break their pledge to vote for a certain candidate) or refuse to count those votes. Just this past term, the Supreme Court unanimously upheld such state laws against "faithless electors."

Congress will then meet to count the electoral vote on January 6, a date again specified by federal law. State delegations may contest the count, but both a senator and a representative from the contesting state must protest in writing, at which point each body will debate the issue for two hours before reaching a conclusion. (This process could be complicated by uncertainty in congressional election results.)



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