This anomaly of an election year has surely primed many voters with the same sense of dread expressed by former Supreme Court Justice John Paul Stevens, who wrote in his Bush v. Gore dissent in part that “we may never know with complete certainty the identity of the winner of this year’s Presidential election.”
But God willing, we will know — it’s only a matter of time. The standing barrier to a swift election night result is the large increase of mail-in ballots and early in-person ballots in states that do not typically have to manage such high quantities of those ballots. The various states’ vote-canvassing laws will be a determining factor in how much time it will take for the election results to be clear.
All eyes are on Michigan, Wisconsin, and Pennsylvania, and none of them started counting mail-in ballots until at least Tuesday. Michigan lawmakers passed legislation in October that allowed for very limited early “pre-processing” of absentee voter ballots, though the law is only effective for this election.
Cities and townships of at least 25,000 residents were permitted to perform pre-processing activities for a 10-hour period on Monday. Officials were “only authorized to perform standard processing activities up to and including the opening of absent voter ballot return envelopes and the removal of absent voter ballot secrecy envelopes containing absent voter ballots and to verify that the ballot number on the ballot stub agrees with the ballot number on the absent voter ballot return envelope label.”
Michigan law still prohibits the tabulation of absentee voter ballots until the polls open on Election Day, so officials just began tabulating them on the morning of Election Day. That’s why Democratic Secretary of State Jocelyn Benson said in October that the election law change was a “step in the right direction” but not enough to really speed things up.
Wisconsin law similarly disallows early processing and counting of absentee ballots. Officials must wait until the polls open on Election Day to begin those processes. That means that officials could not touch the nearly 1.3 million mail-in ballots turned in up through Tuesday until Tuesday morning.
Pennsylvania is in a similar position. Negotiations between the Republican legislature and Democratic Gov. Tom Wolf included a proposal that would amend election law and allow counties to begin processing mail-in ballots before Election Day. Those efforts failed. Pennsylvania law allows that process to begin on Election Day but doesn’t require it. Seven counties will not even begin to process and count those ballots until Wednesday. That issue, coupled with the segregation of mail-in ballots received after Election Day, may well make Pennsylvania the final hold-out.
On the other hand, we are more likely to know the results in a few other key states on election night because they begin processing and tabulating votes early. Florida, for example, has extremely generous early canvassing laws for its vote-by-mail ballots. The state’s election code allows the processing and tabulation of those ballots to begin 22 days before the election, but Republican Gov. Ron DeSantis signed an order allowing the process to begin even sooner than that.
Arizona’s election code allows for the tabulation of mail-in ballots “no earlier than fourteen days before election day,” so, theoretically, the country won’t be waiting as long for its results as it will for the swing states already outlined.
Ohio law allows absentee votes to be processed early this year, beginning on Oct. 6. That is likely why Michigan’s Benson listed the Buckeye State as one worthy of being emulated. However, Ohio’s absentee votes cannot be tabulated until election night.
Voters can expect to have some good insight into who will be our next president on election night, but there are a number of reasons why it may not be as clear a victory for one or the other as past elections, and state absentee voting regimes are chief among those reasons.
