Update: The Michigan legislature has passed a measure that allows election officials to begin processing mailed-in ballots on November 2 in cities or townships with at least 25,000 people. This is a step in the right direction, but it means it still will likely take days for Michigan to tally their ballots. The state should follow the lead of other states whose elections officials process voters’ ballots immediately after they arrive.
More people than ever before in the United States are expected to vote by mail-in ballot this election—an estimated 100 million. Mail-in voting is a proven practice, safe and secure. Several states have conducted their elections by mail as a matter of course for years and have experienced smooth elections with virtually no instances of fraud.
We also know that, with the increase in voting by mail, we may not know the outcome of the presidential race on election night in a close contest. Some states will start processing their mail-in ballots before election day, ensuring they’ll be tallied swiftly, but other states—including the key swing states Pennsylvania, Michigan and Wisconsin—won’t even look at their mail-in ballots until November 3. Counties in these states, and others, will be processing more mail-in ballots than they’ve ever seen before, operating with scarce resources, time pressures, and unprecedented scrutiny. The election could hinge on those mail-in votes and we may not know the outcomes in those states for days or even weeks.
Knowledge is power and anticipating potential scenarios can help avoid the worst outcomes. So, with that in mind, here are four possible scenarios of how election night could play out.
Scenario 1: A definitive result means uncounted mail-in ballots don’t change the outcome
It’s possible that the margins could be decisive enough that the election is called swiftly on election night, and either President Donald Trump or his opponent Joe Biden concedes. This could happen if it’s clear early in the night that the president is out-performing the polls, or if Biden wins decisively in a swing state like Florida that has a record of counting quickly. Even if one of them doesn’t lock down 270 votes on election night, the margins in key counties could signal to both candidates that the outcome is clear.
In that scenario, votes will be counted and the process will be relatively normal.
Scenario 2: The election outcome remains unclear for days or weeks
If it’s a closer race, we might not know who won that night—and that means we’ll have to be patient. If the election outcome depends on states such as Pennsylvania, Michigan and/or Wisconsin to finish counting, the uncertainty could well last for days or weeks. It’s important not to allow a candidate to prematurely declare victory; there’s no legal requirement for the vote count to finish in a single night.
Scenario 3: Nobody concedes and we’re looking at a crisis
Here we enter darker territory. For instance, if Biden wins Florida but hasn’t gotten to 270 electoral votes, the president may not concede the election because all the ballots have yet to be counted. Because of the president’s distrust of mail-in ballots, Republicans are more likely to vote on Election Day than Democrats, who are disproportionately using vote-by-mail in these states.
This makes it especially important to track just how many ballots must still be counted in the most populous counties in Pennsylvania, Michigan and Wisconsin and, at least in the case of Pennsylvania, that tracking will allow us to say what percentage were mailed in by registered Democrats versus registered Republicans. In Wisconsin and Michigan, we’ll have a general idea through past voting tallies whether those outstanding ballots are likely to go to Biden or Trump, but we will have less precise data.
As the count drags on over days, local election officials will be making decisions under pressure, and errors or subjective decisions about which ballots to accept could add up. In this scenario, campaigns will dispute ballots and the legitimacy of the count, giving rise to tensions, conflicting media narratives, and legal battles.
Down this path, we could approach a genuine constitutional crisis—governors and their state legislatures submitting competing sets of electors; disputes in Congress over the legitimacy of electors; unrest and violence; or other developments that could make a procedural solution unclear and even unlikely.
Avoiding the worst
We can minimize likelihood of this dark scenario if state legislatures enact legislation requiring elections officials to begin processing mail-in ballots as soon as they are received. Especially if you are a resident of one of these swing states, you can help by urging your representatives to do so.
Furthermore, the outcome of several current lawsuits—adjudicating procedures for counting ballots that arrive late, with illegible postmarks, or in improper envelopes—will play a potentially significant role in determining whether more or fewer ballots are counted. The number of rejected ballots in the primaries in Wisconsin and Pennsylvania this year was similar to the 2016 margin of victory in those states. Presumably, some of those rejected ballots would have gone to each candidate, but since so many more mail-in ballots will be cast by Democrats in 2020, it is plausible that these court decisions could affect those states’ outcomes.
Along with many others, I will be closely monitoring mail-in ballots in swing states and also in states with a solid history of handling these ballots to try to gauge how things are going. If we find rejection rates that seem too high in any of the counties, we plan to immediately inquire why. Still, because issues can’t always be resolved quickly, it is important for all voters submitting mail-in ballots to send them in as soon as possible and be sure to track them through ballot tracking or contacting local officials to make sure your vote is counted. With knowledge and vigilance we can increase the chances of a fair, if not seamless, election outcome.