In what many voters feel like has been a never-ending presidential campaign cycle, Nov. 3 is finally close enough to touch. But will Election Day 2020 provide closure for a restless electorate?
As President Donald Trump and former Vice President Joe Biden barnstorm a handful of battleground states, the intricacies and mechanics of how a candidate becomes president are coming into light, and all eyes are on the Electoral College. Consisting of 538 electors representing all 50 states and Washington D.C., and roughly allocated by population, the Electoral College, not the popular vote, ultimately decides US presidential elections. To win, a candidate must secure an absolute majority – 270 or more electoral votes. Since most states – with the exceptions of Nebraska and Maine – assign electoral votes on a winner-take-all model based on statewide vote totals, a small percentage of voters in key states can play a deciding role in the overall election outcome. Former Secretary of State Hillary Clinton learned this painful lesson when she captured the popular vote but fell short of the electoral vote four years ago.
With so few states actually in play (in our view, this include Florida, Michigan, Pennsylvania, Georgia, Ohio, Wisconsin, Arizona, Nevada, Minnesota, North Carolina, and New Hampshire), political experts have been taking a deeper look at chaos theories and “what if” scenarios. What if results are contested? Could there be recounts, lawsuits or both? Will state legislatures have to get involved?
Political talking heads have focused on Bush v. Gore in 2000 as the precedent for presidential election chaos. That dispute, untimely decided by the Supreme Court, halted an ongoing recount and determined that President George W. Bush had won Florida by 537 votes. That victory meant that Bush won all 25 of Florida’s electors, giving him a total of 271 votes in the Electoral College and, with that narrow majority, the presidency.
Some experts have forecasted that several states in 2020 could see similar recount and courtroom drama leading all the way to the Supreme Court in deciding whether Trump wins a second term or Biden claims victory. Their predictions are based on the craziness of 2020: the pandemic, a record number of mail-in ballots, the polarization of America and President Trump’s characterization of the voting process.
However, famed Republican election lawyer Benjamin Ginsberg recently put the odds of the 2020 presidential election ending up in a legal battle that sprawls into January at just 1%, citing more signs pointing to a smooth transition than a repeat of 2000.1 Keep in mind that only three of the 57 previous presidential elections have been contested. 1
But is history relevant in modern politics? Here are several variables to watch for to determine if this election will be decided within hours, weeks or months of the polls closing.
Democrats have embraced vote-by-mail while President Trump has lambasted it as fraudulent, despite casting his own ballot by mail in past elections. History will take a very close look at the encouragement – and discouragement – of mail-in and absentee voting on the results of the election both in terms of the presidential outcome as well as the impact on down-ballot candidates.
Election Day and subsequent weeks could see voting result fluctuations as in-person votes are tabulated and mail-in and absentee ballots are counted. As of Oct. 21, the US Elections Project counted 84.7 million absentee ballots that had been requested and 44 million people who had already voted. We expect to see confusion on election night as both political parties and news outlets grapple with reporting in-person votes versus absentee or mail-in as different states have different rules on when votes can be counted. Also, there are questions as to when mail-in or absentee votes are valid.
Here are three different categories of how and when states can count early votes, and they will be important to understand the differences as the results come in:
- Upon receipt. 22 state election authorities and the District of Columbia start counting when the ballot is received. Among this group, Arizona, Georgia, Minnesota and Nevada are considered the most pivotal for the presidential election and could foreshadow a good night for President Trump or former Vice President Biden. If Biden were to flip the red state of Georgia to blue and secure 16 electoral votes, it could prove be to be a tough road for Trump. Similarly, in 2016, Trump narrowly lost Minnesota – a state that has not voted for a Republican president since 1972. If the results look favorable for Trump there, it could not only put 16 critical electoral votes in his tally but foreshadow that the famous “Blue Wall” (Michigan, Wisconsin, and Minnesota) has crumbled. Arizona’s ability to count as the votes are received prior to Nov. 3 could permit some early forecasting on whether Trump recaptures the Grand Canyon State’s 11 electoral votes, or if Biden is well on his way to becoming the 46th president.
- Before election day. 25 state election authorities can tabulate votes at a defined date by state law. Among this group, Florida, Iowa, Michigan, New Hampshire, North Carolina and Ohio are considered the most critical to election outcomes. But these states differ as to when counting is permitted. On one end there is Florida, which started its tabulation on Sept. 24, and on the other end is Michigan, which starts counting 10 hours before Election Day. The early tabulation will allow states to report out Nov. 3 numbers that could either spell doom and gloom or early moments of celebration for either party. In our view, President Trump’s path to victory will be severely truncated if he cannot match his 2016 victories in Florida, Ohio, Michigan and North Carolina. Similarly, any victory by Biden in these same states would be a sign of optimism for Democrats. The ability for these states to count early should remove weeks of suspense as they will have a head start on tabulating votes while also counting in-person voting, which is expected to lean Republican. Another important element to watch in Florida is that the state does not allow ballots to be counted if they are received after Election Day, which should reduce election result delays.
- On election day. Four state election authorities can tabulate votes on the date of the election, with Wisconsin and Pennsylvania by far the most important to determining election outcomes. President Trump shocked the political establishment in 2016 when he won both states, and neither party is leaving anything on the table in 2020. Both Republicans and Democrats will be closely watching election night to see results in these battleground states. Wisconsin officials have said they expect to have their results completed the day after the election. The state has also permitted county clerks to verify signatures on the outside of the ballots early, which should reduce day-of vote counting (and suspense) and reduce the number of questionable ballots.
What does this all mean?
The ability for critical bellwether states to either tabulate ballots as they come in or on a certain date before Nov. 3 does provide some certainty that election results will come sooner rather than later. It is estimated that 40% to 50% of the projected 150 million votes could be cast by mail. Experts largely expect early voting to favor Democrats and Election Day in-person voting to favor Republicans. Depending on when states begin counting mail-in votes, and therefore which votes – mail-in or in person – are reported first, there could be several “blue or red shifts.” This could create the impression that one state is headed blue or red based on that state’s ballot counting requirements. The “blue and red” shifts may frustrate the candidates and create the appearance of “fraud” or gamesmanship, but they are simply part of the process that will allow the results of the election to be made public faster.
With only a handful of truly competitive states, the path to either candidate securing the 270 electoral votes needed for victory hinges on election returns in Florida, Michigan, Pennsylvania, Georgia, Ohio, Wisconsin, Arizona, Nevada, and Minnesota. Contested or uncertain results in any of these states, as occurred in Florida in 2000, could prevent either candidate from reaching the 270-vote threshold. President Trump and some experts have raised concerns that delays in finalizing election results could run into the Dec. 8 safe harbor deadline. This deadline, set by federal law, is the last day when states can appoint electors without interference from Congress.
Electors are set to cast their votes on Dec. 14. If a state’s results remain contested and without a clear winner past Dec. 8, there is no clear remedy. One option would be for the state’s legislature to name its own slate of electors regardless of the results of the statewide vote. In states where one party controls the legislature and a different party holds the governor’s office, this could result in competing slates of electors being sent to Congress. In either case, a state government overriding the popular vote could lead to claims of a “stolen election” and push the losing party to not accept the results. Despite the possibility of these worse case scenarios, it is important to note that no state legislature has ever appointed a slate of electors supporting a candidate who lost that state’s popular vote, and in our view, this remains unlikely in 2020.
State election rules and law
If election results in one or several states are in question this November, the vast majority of states have basic election safeguards already in place to create an orderly process to determine the legal electoral outcome.
As of October 2020, 20 states have a statutory provision allowing for an automatic recount of votes if the margin between the top two candidates is within certain parameters. Forty-three states have a statutory provision allowing for a requested recount of votes. In our view, it is highly unlikely that statutory requirements for a mandatory or requested recount will be triggered since it is improbable that those states’ results will be so narrow and are relevant to the Electoral College outcome that the country will see widespread vote recanvassing. The biggest hurdle for a contested election would be a few battleground states that have protracted election recounts that could see their results questioned.
The bottom line is that states have been preparing for a highly competitive presidential race and will be certain to ensure the results are accurate and timely. The rules of the road are clear in disputing election (allegations of fraud) results and requesting recounts, and all eyes will be on those states if their results will determine the winner. While it could be a bumpy road over the next several weeks, it’s unlikely Americans will have to go too long before they know who will serve as president for the next four years.
1 Source: Bloomberg, “Election Night Has Paths to a Fast Result—or a Lengthy Slog,” Oct. 14, 2020
Blog header image: Hill Street Studios / Getty
The opinions referenced above are those of the authors as of Oct. 30, 2020. These comments should not be construed as recommendations, but as an illustration of broader themes. Forward-looking statements are not guarantees of future results. They involve risks, uncertainties and assumptions; there can be no assurance that actual results will not differ materially from expectations.