‘It may take days.’ Election experts warn voters to be patient with results this year
You might go to bed Tuesday night unsure of who the next president will be. And you might wake up Wednesday morning — and a few mornings after that — without a clearer picture.
There are two big reasons for the potential lag. One is the unprecedented number of mail ballots cast in 2020, many by voters concerned about the COVID-19 pandemic. The other is the country’s patchwork election system, which means all 50 states and the District of Columbia will be processing those ballots under different rules.
It’s not just the presidential results that could be delayed. Key down ballot races — including the U.S. Senate contest and legislative races in Kansas — may also remain in doubt.
“My message has always been, if it’s a close race, don’t celebrate the winner on election night,” said Johnson County Election Commissioner Connie Schmidt.
Election law experts are urging patience and reminding people that election night calls on TV networks have no legal effect. It always takes states several days or weeks to count all of their valid ballots before certifying results.
Complicating efforts to communicate this message to voters is the disinformation from President Donald Trump.
“It would be very, very proper and very nice if a winner were declared on Nov. 3, instead of counting ballots for two weeks, which is totally inappropriate. And I don’t think that that’s by our laws. I don’t believe that,” Trump said this past week.
Trump is conflating declarations of projected winners by media outlets with the certification of results by election officials, which takes place weeks later. The system is designed to ensure accuracy in close elections and to ensure that only rightful ballots are counted.
“The president’s statement is just silly. We never have an official winner on election night. States have five weeks to get their election certifications done,” said Rick Hasen, an election law expert at the University of California, Irvine School of Law.
Trump’s rhetoric could be dangerous if it makes supporters of the losing candidate question the legitimacy of the election as normal ballot counting processes take place.
“The president’s rhetoric about rigged and stolen elections is hugely irresponsible. It’s convincing both sides that the other is trying to cheat,” Hasen said.
Different rules in each state
Kansas and Missouri illustrate why some states can be called early, while others might require more time.
Missouri expanded options to vote by mail or absentee in the face of the pandemic. While some categories of voters face a notarization requirement, demand has been high. A week before Election Day, roughly one in seven Missouri voters had already cast a ballot.
But the state will enforce a strict Election Day deadline for mail ballots to count, with an exception for military ballots.
Kansas will accept mail ballots that are postmarked Nov. 3 through the Friday after the election, a rule meant to ensure delivery delays don’t prevent a rightful vote from being counted. This could make a significant difference in determining winners in close legislative races and the high stakes race for U.S. Senate.
A large number of mail ballots have already arrived at election offices around the state. Roughly one-third of registered voters in Kansas had already cast their ballots either in person or by mail as of Friday morning.
The problem with Pennsylvania
Other states, including key battleground states of Michigan and Pennsylvania, will be experiencing their first elections under laws that allow for mail voting for any reason.
If these states emerge as the deciding factor in the presidential election—as they were in 2016—then Americans should prepare to go to sleep Tuesday night without a clear winner in the race between President Donald Trump and former Vice President Joe Biden.
Hasen said he is praying the presidential race doesn’t come down to Pennsylvania.
The law to expand mail voting in Pennsylvania was passed before the pandemic hit, but it has caused demand for mail ballots to skyrocket and has put increased pressure on election officials in a state that hasn’t previously run an election with significant mail voting.
“They were already expecting a huge ramp-up,” Hasen said. “It takes a long time to process absentee ballots because before you count them you have to make sure they’re valid. The message has to be patience. If it’s very close, it may take days. You have to avoid the noise.”
Similar to Kansas, Pennsylvania will also be accepting mail ballots through Friday. However, the state has different rules for when it can begin processing mail ballots that arrive before the Election Day.
In Kansas, election offices are allowed to begin procedural work, such as verifying signatures, as mail ballots arrive. That means the first votes tabulated on election night in Kansas will be the ballots that arrived before Election Day.
In Pennsylvania, however, election officials cannot process the mail ballots until after polls close, which means the cumbersome work won’t begin until Tuesday and may not finish for several days.
“If Pennsylvania is the state that tells us who won the presidential election and we won’t know for a week, I think that’s uncomfortable for people,” said Lawrence Norden, director of the Election Reform Program at New York University’s Brennan Center for Justice.
Norden said any time a state is expected to be the tipping point in a presidential race its election procedures come under scrutiny. He noted that in addition to causing a surge in mail ballots COVID-19 will require officials to distance themselves as a precaution, which could slow down the process of counting ballots.
But a slow process is fine as long as it ensures accuracy of results.
“People just need to understand the counting process. There’s a lot of safeguards to ensure when those votes are certified, we’re confident in those results,” Norden said.
The intense scrutiny on the results will put pressure on news organizations to carefully consider election night calls in close races.
The Associated Press, which approached the infamously close 2000 presidential contest in Florida more cautiously than the networks, says on its website it won’t call any race until it is “fully confident a race has been won – defined most simply as the moment a trailing candidate no longer has a path to victory.”
David Becker, the executive director of the Center for Election Innovation and Research, said he was optimistic that the media would handle the situation with the necessary caution if a candidate holds a narrow lead in Pennsylvania before mail ballots have been processed.
“Might President Trump claim victory in Pennsylvania? Sure. But institutional Republicans won’t. The media won’t,” said Becker, who served as a senior attorney in the Department of Justice’s voting division during the Clinton and Bush administrations.
‘Not over until the canvassing’
During the U.S. Senate debate in Wichita last month, Republican Rep. Roger Marshall, who has aligned himself with Trump on virtually every major issue, said that he was highly confident that Kansas results would be accurate but quipped “maybe not so much in the Democrat-led states.”
It’s a comment that reflects the legal battles the two parties have been waging over mail ballots in the lead-up to the election.
The U.S. Supreme Court declined to take up GOP lawsuits challenging rules that allow the counting of late-arriving mail ballots in Pennsylvania and North Carolina. The issue could re-emerge if either state is critical to an Electoral College majority.
Becker said that in the unlikely event that the election is decided by a few hundred votes in one state, such as in 2000, there’s no election system on the planet that would prevent it from going to the courts.
“I think everyone acknowledges if it does come down to one state that is very narrow, Pennsylvania is probably the best bet for it,” he said.
Kansas and Missouri are not likely to factor into any legal battle for the presidency. Trump won both by double digits four years ago and he is expected to again even if his numbers take a dip.
But both states could see down ballot battles that drag on for days or weeks beyond Election Day, particularly in Kansas, where the high stakes U.S. Senate race could hinge on late-arriving mail ballots or provisional ballots.
Kansas Secretary of State Scott Schwab’s office made a point ahead of warning voters and the media to be cautious about interpreting unofficial totals on election night.
Kansas has a long history of close races decided by provisional ballots, which are not counted on Election Day for a variety of reasons.
These ballots are counted when county election offices conduct their canvass after the election and determine which provisional ballots constitute rightful votes. Counties will conduct their canvasses between November 9 and 17.
David Kensinger, a longtime Republican strategist, noted that Kansas Gov. Laura Kelly’s first election to the state Senate in 2004 hinged on provisional ballots in Shawnee County.
“I think a lot of folks still think what is reported on election night is binding. It’s not,” said Kensinger, who has managed statewide campaigns for former Gov. Sam Brownback and Sen. Pat Roberts. “None of this is official until canvassing.”
Kensinger recalled the close race for Kansas attorney general in 2002, when officials in Thomas County transposed vote totals for Republican Phill Kline and Democrat Chris Biggs, a mistake that was caught after Election Day. The canvass ensures clerical mistakes like that are corrected and that valid provisional ballots are counted.
As of Tuesday, roughly 4,000 voters in Johnson County, the state’s most populous county, had to cast provisional ballots, according to Schmidt, the election commissioner. The main reason voters to had to vote provisionally was that they had shown up to vote in person after requesting a mail ballot, Schmidt said.
Their votes should count after election officials verify during the canvass that they did not double vote by also sending in a mail ballot. Canvass occurs roughly a week after the election, which could affect final totals for competitive legislative races.
“It’s not over until the canvassing,” said state Rep. Stephanie Clayton, an Overland Park Democrat. “That is the true Election Day, honestly, especially when you’re looking at statehouse results. It is one of those things where, we’re Americans, we love our instant gratification, but I think we love accuracy more.”
Jonathan Shorman and Matthew Kelly reported from Kansas City.
This story was originally published November 1, 2020 at 7:00 AM with the headline "‘It may take days.’ Election experts warn voters to be patient with results this year."
