Ballots turn up late
The worrisome and well-documented pandemic woes of the U.S. Postal Service, and the concerns about its Trump megadonor-turned-postmaster general, have turned this venerable agency into a point of worry this year. Nearly three dozen states require absentee ballots to arrive by Election Day—Alabama even requires receipt by noon on Election Day—and the post office is warning that it may take 10 days or more for mail ballots to work their way through the system. It’s all but guaranteed that gobs of ballots will turn up late across the country, perhaps through no fault of voters. More nettlesome questions will arise if ballots turn up in suspicious circumstances, either discarded by postal carriers, hidden in election offices or intercepted by campaigns. Expect court fights around accepting or counting late ballots if an election seems close. If innocently misplaced or nefariously concealed ballots turn up late in an “Election Day receipt” state, voters would have no recourse other than a potentially long-shot court challenge.
A counting collapse
This year could see multiple rounds of problems hit election officials as they try to tally votes, from cyberattacks to the possibility that complex state rules about absentee ballots might invalidate tens of thousands or even hundreds of thousands of ballots. In South Carolina, there’s already likely to be confusion and ballot challenges around the state’s law that absentee ballots be witnessed; the policy had been suspended, then reinstated by decree of the U.S. Supreme Court, yet absentee ballots were still being sent out with incorrect instructions. In Pennsylvania, media and election officials are racing to educate voters—candidates are even literally posing naked—about the need to put their ballots inside a “secrecy envelope” and warning that under an antiquated law so-called “naked ballots” will be discarded; election officials had tried to suspend the rule, but lost a court fight against the Trump campaign and the Republican National Committee.
The good news is that, despite the fresh logistical concerns of the pandemic, election machinery has in many parts of the country been dramatically improved, tightened and secured since 2016, when Russia’s attack brought fresh attention and resources to election administrators. Many jurisdictions have embraced anew paper ballots, which would make recounts easier and more reliable.
The biggest new challenge to come out of the pandemic will be simply the sheer volume of absentee and mail-in votes likely to land in states that have little experience carrying out large-scale vote-by-mail operations might lead to confusion, slow returns, overwhelmed local officials, and misplaced boxes and bags of ballots. The GOP, meanwhile, is seemingly working to manufacture precisely this type of crisis by preventing local officials from following the best practices of starting to process absentee ballots before Election Day.
Experts have their eyes on Wisconsin, Michigan and Pennsylvania, crucial swing states that will likely be slow to report results because of their limited ability to process absentee ballots ahead of time. Nevada is mailing all its voters ballots, resulting likely in a slow count, too. There’s a scenario in which, if Trump wins every state he carried in 2016, he will net 260 electoral votes on election night itself and then the nation will settle in for the count—and the fight over the count—in those four remaining battlegrounds.
While the final vote margins are unlikely to be as tight as the 537-vote margin in Florida in 2000, it may take days before anyone feels comfortable declaring even a 10,000 vote or 20,000 vote lead victorious. “Florida 2000 was like trying to track a speeding car and determining whether it was going 72.2 or 72.3 miles per hour—there’s no radar gun in the world precise enough to accurately determine that,” says one Democratic strategist. “This election is like trying to track a car with a stopwatch and a potentially corrupt sheriff.”
Another key fight will likely be around so-called “provisional ballots,” those cast by voters who think they should be registered but aren’t, or, for instance, who show up accidentally at the wrong polling place. Those ballots require additional work by election administrators—and often the voter himself or herself—to verify post-election and may end up being subject to court challenges. Given the certain confusion about relocated and moved polling places for the pandemic—as well as the shockingly higher than expected voter turnout—2020 will surely make heavy use of this mechanism to allow likely eligible voters to participate on Election Day. “There will be more provisional ballots cast this year than normal,” Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund told an Aspen Institute gathering this month. “To the extent that we’ve seen massive voter purges targeted at the African American community, polling place changes targeted at the African-American community and other voter suppression activities, we can expect that the disproportionate number of people who will be casting those provisional ballots will be Black voters.”
It’s entirely possible (perhaps even likely) that the number of disputed or discarded ballots in certain jurisdictions will exceed candidates’ margins of victory or loss. Officials in Pennsylvania, a state Trump won in 2016 by just 44,292 votes, fear the “naked ballot” issue might lead to 100,000 discarded ballots. And that’s likely to affect not just the presidential race, but tight congressional, senate, gubernatorial or legislative races as well.
Legitimate fraud is uncovered
This one is a huge talking point in some circles, but not for most election experts. True fraud in America’s elections is negligible, studies have shown, and even with more use of mail-in ballots it’s effectively impossible to carry out at scale. Nationally, New York University’s Brennan Center for Justice calculated fraud at no more than 0.0025 percent, smaller than almost any possible margin. And despite numerous claims by Trump and Republican officials about increased fraud from vote-by-mail, there’s no evidence that’s true. Quite the contrary: Washington state historically conducts its elections entirely by mail, and its Republican secretary of state, Kim Wyman, says that in 2018 they found 142 fraudulent voting attempts out of 3.2 million ballots—about .004 percent.
However, localized examples of fraud do occur—the most recent example being Republican campaign operatives scheming to deliver a victory in a North Carolina congressional race. Expect any such localized incidents to be seized upon by national voices as systemic indictments.
Vote counters are intimidated or attacked
In the event of contested or disputed vote counts, election protection experts are particularly worried about the reprise of the 2000 “Brooks Brothers riot,” where nicely dressed, khaki-wearing Republican operatives stormed the offices of election administrators in Florida and tried to shut down the counting operation. That protest was a key demonstration of how the Bush campaign outmaneuvered the Gore campaign amid the debacle. “It was a three-pronged effort,” Bush operative Brad Blakeman said in 2018. “It was a court battle. It was a recount organization. And it was also a PR effort because, although the voting effort ended, the campaign never did until there was a definitive and defined winner.”
That then-novel idea of “working the refs” post-election would now be part of the standard playbook in 2020—and officials and experts worry that this year’s political tension and national backdrop might mean threats or acts of violence or targeted online or real-world harassment of election administrators, both at work and at home. “We expect and fear that there will be intimidation of vote counters,” the NAACP’s Ifill told the Aspen Institute audience last month. “Our fear is that this year rather than wearing khakis, they will be strapped with AR-15s. It’s critical to engage with attorneys general, with governors, to prepare to protect the election counters the week after so that we can ensure that all absentee votes are counted.”
Supreme Court challenge that stops a count or ultimately decides the election
Unfortunately, one of the most politically fraught and divisive scenarios that might play out after a close, contested election is also among the most likely—after all, it’s what happened in 2000 to end the counting and hand George W. Bush the presidency. If there are major legal fights post-election and challenges about vote counts, it’s almost certain that such disputes will end up at the doorstep of the Supreme Court. If Amy Coney Barrett is confirmed in the coming days, as the Republican Senate seems set to do, that would mean a decisive 6-3 Republican majority on the court, three of whom are Trump appointees. Trump has already made clear that’s exactly the line-up he wants to be judged by amid any election problems. “I’m counting on them to look at the ballots, definitely,” Trump said.
Any party-line Supreme Court decision that benefited Trump’s candidacy would be viewed with great suspicion by Democrats and Biden voters, further politicizing and polarizing the court, and leaving liberal voters—and perhaps members of Congress—openly questioning the legitimacy of his second term. The key figure to watch here could be Chief Justice John Roberts, who has worked carefully in recent years to preserve the court’s reputation as a neutral arbiter, even if that means siding with the more liberal justices on controversial issues, and would be under immense pressure from both sides in any post-election court cases.
Trump or Biden refuses to accept legitimacy of the results
Trump has attempted to throw all manner of sand into the gears of American democracy—hinting, if he wins, he might run for a third term, refusing to commit to a peaceful transition of power and repeatedly preparing his supporters for a moment where he refuses to concede the election.
His behavior, threats and rants aren’t altogether surprising, given that he’s been so self-conscious and insecure about winning the 2016 election that he’s repeatedly bragged about his Electoral College victory to world leaders and falsely asserted that millions of illegal votes were cast four years ago. Meanwhile, American politics seems uniquely primed to believe that the election results are illegitimate: Politics has been slowly and insidiously poisoned over the past four years by the spread of QAnon, a quasi-religious Republican cult of falsehoods, elaborate and improbable conspiracy theories, and outright absurdity that has so captured the GOP’s base that as many as five Republican congressional candidates have espoused support for it.
Hillary Clinton, for her part, has urged Biden not to be quick to concede a loss either. “Joe Biden should not concede under any circumstances because I think this is going to drag out, and eventually I do believe he will win if we don’t give an inch and if we are as focused and relentless as the other side is,” Clinton told Jennifer Palmieri on Showtime’s “The Circus” earlier this fall.
Leaders in both parties have tried to downplay fears that the election results may not be accepted. “The winner of the November 3 election will be inaugurated on January 20,” Senate Majority Leader Mitch McConnell tweeted, soon after Trump’s remarks. “There will be an orderly transition just as there has been every four years since 1792.” The obvious wiggle room in McConnell’s framing, though, is that the entire post-election fight will be around just who gets declared—and accepted—as that “winner”?