Barring a clear landslide, Americans will likely not know the 2020 presidential election winner between President Donald Trump and former Vice President Joe Biden on Election Night. The results may not be clear for days or weeks due to the expected record flood of mailed ballots and the legal challenges that will surely follow.
"I think there's a very, very strong possibility that, instead of preparing for Election Night, Americans should settle in and prepare for Election Month," said Hofstra Law Professor James Sample, an expert on election law.
Both candidates have raised concerns about election rigging and fraud, but none more vociferously than the president.
Trump on Sept. 23, signaled he expected the election to be contested all the way to the Supreme Court. He has claimed -- without proof -- that voting by mail will be rife with fraud. He has also claimed that the only way he will lose is if the election is rigged. And he said "we'll wait to see what happens" when asked if he would commit to a peaceful transfer of power -- a hallmark of American democracy -- should he lose. (Congressional leaders from both parties pushed back, with Republican Senate Majority Leader Mitch McConnell vowing an “orderly transition" and Vice President Mike Pence recently saying they'd accept the results.)
Biden has also warned about election integrity and has been urged by 2016 runner-up Hillary Clinton to not concede "under any circumstances" if the race is close.
The wild card in 2020 is absentee and mail-in ballots. Some 80 million are expected, double that of 2016 according to the Brennan Center for Justice. The expectation is that Republicans will be more likely to vote in person while Democrats are more likely to vote by mail. In North Carolina alone, more than half of absentee ballot requests came from Democrats. Only 103,000 of the 643,000 requests were from Republicans.
Here is a look at what voters can do to make the process faster and smoother, what could delay the results and how the House of Representatives may ultimately decide who will take the oath on Jan. 20, 2021.
Make sure your ballot is properly filled out and information is up-to-date
Whether you vote in person or absentee, there are guidelines you must follow in order for your vote to count.
Make sure you fill in the entire bubble next to the candidate you support. If the machine can't read the ballot, your vote may not count.
If you change your address past the time to update your voting registration information, show up to vote at the wrong precinct, or request an absentee ballot the week before the election and you don't have an ID, you may end up filling out a provisional ballot. If the provisional ballot doesn't check out, they cannot count that vote.
Madison County Circuit Clerk Debra Kizer said, "One that we sometimes have but not very often is when people have moved and it's past the deadline to register or update your address, then we give them the form to update it and we give it to the Board of Registrars along with their ballot on election night."
If you vote absentee, you must fill out all the information correctly or risk your ballot being thrown out. If the absentee ballot is not signed and witnessed, they cannot count it.
"There's no way to correct that," said Kizer. "It's sort of like putting in your ballot into the machine, and once you put it in the machine, you can't get it back out, so we're kind of like the machine when we get it. The law doesn't allow us to give it back to the voter, so that will disqualify it."
When will absentee and mail-in ballots be counted?
Each state has its own rules. In the battleground state of Florida, for example, counting can begin 22 days before the election, according to the National Conference on State Legislatures. Results can't legally be released until Election Night. But in Maryland, ballots received by mail can't be counted until the day after the election.
In Alabama, all absentee ballots are stored until Election Day when they are counted.
Many states require the ballots be postmarked by Election Day and allow them to arrive several days later. Some require the ballots to arrive to elections offices by Nov. 3.
Beyond just tabulating votes, envelopes have to be opened and signatures have to be compared to what is on file -- things meant to prevent voter fraud. That takes time.
Voter fraud less likely than being hit by lightning
Trump has claimed mail-in ballots will lead to widespread voter fraud, but he was claiming fraud in general well before this year's election. Trump formed a committee in 2017 to search for widespread voter fraud. It disbanded without finding any proof.
Sample says there have been countless investigations from people on both sides of the political and ideological spectrum which have found extensive voter fraud doesn't exist.
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"They are statistically less common than being struck by lightning," said Sample.
The Heritage Foundation, a conservative policy group, has found a total of 1,298 instances of proven voter fraud dating back to 1982. That's 1,298 out of hundreds of millions of votes.
Ben Ginsburg, a Republican who spent 38 years practicing election law, wrote in the Washington Post on Sept. 8 that fraud cases are isolated and committed by both Democrats and Republicans.
Lawsuits. Lots and lots of lawsuits.
Expect this election to end up being challenged by both sides in court.
"I think this will end up in the Supreme Court," Trump told reporters on Sept. 23.
According to the Associated Press, at least 170 lawsuits had been filed across the country over voting procedures as of September 3. Many were by groups tied to the two major political parties or by the parties themselves. Expect that to continue as both sides challenge close results.
One of the most common legal maneuvers is to ensure polling places stay open. Judges are often asked to order injunctions to keep locations open past the time they were scheduled to close. This is commonly due to long lines or problems with the voting process itself. It could be exacerbated this year due to concerns about understaffed polling places due to COVID-19.
"A lot of election districts around the country are going to be using a combination of duct tape and Elmer's glue to make voting accessible and safe, as best they can with limited resources," said Sample. He noted long lines tend to be in poorer, Black, Latino and urban communities.
Voter intimidation may also be an issue, Sample says. He notes that while it's impossible to know who every person is voting for at a particular location, depressing all of the votes in a traditionally Republican or Democratic district can ultimately help the intimidator's favored candidate.
Then there are the mail-in and absentee ballots. These have a higher rate of being rejected because voters are more likely to make mistakes.
"And those mistakes are usually quite technical. But the partisans on both sides ... will have an incentive to aggressively dispute the legitimacy and veracity of some of those ballots in states where the margins are close because that could well be the difference," said Sample.
The nightmare scenario, Sample says, would be if there are multiple states decided by a razor-thin margin. In the contested election between George W. Bush and Al Gore in 2000, the margin in Florida was 537 votes before the U.S. Supreme Court weighed in, giving Bush the win.
John E. Finn, Professor Emeritus in the Department of Government at Wesleyan University, wrote in The Conversation that states are the ones that conduct elections. Therefore, it's state courts where election disputes are most often fought.
"In a closely contested national election, where the results in some states are in doubt and may be for many days, this will likely result in several cases being filed simultaneously in several states, and by both major party candidates," Finn wrote.
Finn says that for a contested election case to move up to federal court, "there must be must be an allegation that federal constitutional rights have been violated." That's what happened in Bush v. Gore. The U.S. Supreme Court, in a 5-4 decision, ruled that a recount mandated by the Florida Supreme Court violated the equal protection clause of the Constitution.
Another possible challenge: Will Trump claim that only the votes counted on Election Night should decide the election? In the 2018 midterms, Florida Republicans Rick Scott and Ron DeSantis narrowly won their races for Senate and governor, respectively. But as the vote count continued for days, the closing margins led Trump to tweet, without evidence, that ballots were missing or forged.
"Must go with Election Night!" Trump tweeted.
A Democratic think tank called Hawkfish is warning this situation could occur in the 2020 election, according to Axios. It's a phenomenon called the "Red Mirage" -- a case in which Trump has the lead on election night due to in-person voting that is mostly expected to be Republican. But if Democrats do vote by mail in larger numbers, millions of those votes won't be counted for days. The result could change in Biden's favor and give Trump an opening to claim the results illegitimate. Because of this possibility, Democrats have recently shifted their strategy and urged people to vote in person, including early voting.
Congress may have the final say
There is one more scenario to be prepared for. If, after all these disputes, neither candidate gets to 270 electoral votes, the Constitution says the House of Representatives must decide the election in January regardless of what else happens. Each state delegation will vote as one. The majority of those delegations are controlled by Republicans, giving Trump the advantage.
Here's the kicker. The Senate would pick the vice-president by a simple majority vote of the 100 senators. If the House is not able to pick a president by inauguration day, the vice-president-elect becomes the acting president until the deadlock is broken.
If both the House and Senate are deadlocked by inauguration day, the presidential order of succession applies. The Speaker of the House would be the acting president.
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