There is no constitutional or other legal provision guaranteeing the declaration of a presidential victor on election night. It has, however, become a privilege and expectation. Knowing the results inspires confidence, even if the result of the results is a recount or litigation.
The Trump campaign suggests there is cheating going on in both Michigan and Pennsylvania — which seems like an unjustifiable claim at this juncture, but the reason President Trump’s team has ground to raise suspicion is because the two states are such heated battlegrounds and counting has been so slow.
Ohio and Florida proved the virtues of their early processing and counting procedures. The two states are among the most consequential for a presidential campaign, and both were called just after midnight. Their election laws made that possible because they allow officials to begin processing absentee votes well before Election Day.
Florida allows the processing and the tabulation of vote-by-mail ballots to begin 22 days before the election. This year, Republican Gov. Ron DeSantis helped officials get even more ahead of the game by signing an order allowing the process to begin even sooner than that. The Associated Press called Florida for Trump at 12:34 a.m.
Ohio officials could begin processing early ballots on Oct. 6, though the ballots could not be counted until polls closed on Tuesday. The early start made it possible for the Associated Press to call Ohio for Trump at 12:17 a.m.
Arizona, for its part, allows early canvassing. The Associated Press called it for Joe Biden at 2:50 a.m., though the Trump campaign has questioned that decision.
Contrarily, it is expected to take days for Pennsylvania to be called, in part because state law does not allow for early processing or counting of absentee ballots. It doesn’t even require county officials to begin processing them on Election Day. That’s why seven counties could put off the task until Wednesday.
The state had an opportunity to change election law to allow for early processing, but divisions between its Republican Legislature and its Democratic governor on other election-related issues precluded a deal.
Michigan allows for very limited early processing, and officials did not begin counting absentee ballots until Election Day. The Associated Press called the state for Biden late Wednesday afternoon. Early processing and counting would likely have allowed for a much more timely result.
The argument against having early canvassing is straightforward: It could result in leaks and affect Election Day turnout. Florida defends against that by making it a third-degree felony to release such information. But in any case, the benefits of early canvassing may well outweigh the risk of that happening.
As Justice Brett Kavanaugh wrote in his opinion in a recent election ruling regarding Wisconsin, “Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner.” His was an argument against allowing mail-in ballots received after Election Day to be counted, but it could be adopted to argue for early canvassing, especially in an election with disproportionate participation through early absentee voting.
To be clear, an early vote canvassing regime would not guarantee that a state has clear results on election night. Vote margins also determine timeliness. Large margins allowed Florida and Ohio to be called just after midnight, but in concert with their early canvassing regimes.
Had those been in place in Michigan and Pennsylvania, the barrier to either candidate unjustifiably declaring a premature victory would have been larger.
