Election night this November could feel a lot like the start of the 2000 Florida recount that took 36 days to decide who the next president would be, due to rapid rules changes in states adopting mail-in and absentee ballot systems.
Logistical hurdles to counting mass amounts of ballots and legal challenges revolving around ballots that are not counted could delay full results for days or weeks, which may include uncertainty over whether President Trump or Joe Biden won the election if the race is close in some states.
“The public needs to have an expectation that they’re not going to tune in to CNN and get answers at 11 or midnight on Election Day,” Joe Ready, director of the Democracy for the People campaign at U.S. PIRG, told the Washington Examiner. “In many cases, a significant number of the votes won’t be counted” by then.
Sharp increases for demand in absentee ballots have already overwhelmed elections administrators in primaries held this year. New York didn’t start counting absentee ballots for its primaries until this past Tuesday, two weeks after its primary elections, Ready noted.
“Any state that does not have a significant history of large-scale absentee voting, I think is going to be struggling in November to deal with the demand,” Jason Snead, executive director of the Honest Elections Project, told the Washington Examiner.
In the state of Washington, which has a total vote-by-mail system, Secretary of State Kim Wyman has warned that building up systems to process mail-in ballots quickly and accurately takes a long time.
“You can’t just flip a switch and go from real low absentee ballots to 100% vote-by-mail,” Wyman told the New York Times in April. “It took five years to get all 39 of our counties to move to vote-by-mail.”
Laws that are not designed for a large portion of mail-in and absentee ballots will also slow down the counting of votes.
In some states, administrators are allowed to process and verify mail-in ballots, which can include matching affidavit signatures on the front of the envelope to a voter file, days or weeks ahead of Election Day, while others are barred from doing so until the day of. Those states include the crucial Electoral College swing states of Wisconsin, Pennsylvania, and Michigan.
Other states, including Florida and New Hampshire, allow processing to happen earlier but bar tallying ballots before the polls close.
But what could really drag out election results, and delay the results of the presidential election if Trump and Biden are very close in crucial states, is lawsuits over the counting of mail-in ballots.
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“You could be looking at longer than just a few days. You could be looking at weeks of litigation depending on how bad those problems are,” Snead said.
There could be lawsuits about whether or not to count mail-in ballots that were thrown out for technical reasons — the 2020 version of “hanging chads” on Florida ballots that led to a weekslong legal battle over the counting of ballots in the state in which the distribution of Electoral College votes decided the 2000 presidential election.
Many absentee ballots are thrown out and never counted because of technical issues. Signatures on the cover of the envelope that contains the mail-in ballot could be thrown out, as would be ballots that are not returned in the proper envelope.
Nearly 1 in 10 mail-in ballots in a May special election in New Jersey were not counted, according to NJ Spotlight. In Florida, thousands of ballots were not counted because they were received after Election Day rather than the legal requirement of before Election Day.
Even if the race is not so close in key states that it delays election results for weeks, political ramifications are likely.
“You could see people making a case that the election was illegitimate because of all of these rules changes that were imposed at the last minute by courts because people were bringing partisan lawsuits trying to manipulate the election process,” Snead said.
State elections officials are warning the public that there are unlikely to be enough results available on election night to call key races.
“We’ve gotten accustomed to this idea that by the middle of the evening of election night, we’re going to know all the results,” Republican Ohio Secretary of State Frank LaRose told the Associated Press in May. “Election night reporting may take a little longer.”
“It may be several days before we know the outcome of the election,” said Jocelyn Benson, Michigan’s secretary of state. “We have to prepare for that now and accept that reality.”
