One thing is fairly certain this year: We are not likely to know the results of the presidential election on Nov. 4. As we center ourselves on that reality, we asked Chad Dunn, co-founder of the UCLA Voting Rights Project, to share some thoughts about what to expect as Americans cast their votes and eagerly await the election results.
Going into Election Day and night, what should people know about vote tallying?
First and foremost, people should know that in every corner in America there are hundreds of thousands of people 110% committed to American democracy, who, in many cases, have devoted their careers to one thing: ensuring accurate election counts. Our country is blessed by these committed Americans, and I have no doubt whatsoever that they will see to an accurate count, no matter the distractions.
Why are there differences by state?
The U.S. Constitution elections clause provides that state legislatures set the “Times, Places and Manner” of federal elections, unless Congress directs otherwise. Except in a few arenas, such as voter registration and nondiscrimination, the U.S. Congress has largely stayed out of writing election rules.
Even if Congress were to write detailed election procedures for the federal elections, states would be free to ignore many (but not all) of those rules in elections for state offices. Therefore, each state presently has its own processes and procedures for running elections.
Since our nation’s founding, citizens have debated whether this system protects our democracy or endangers it. Some say different state systems protect the country from foreign interference; others say that the myriad rules have the effect of weighting citizens’ votes differently by state.
I suspect we will always debate these issues. But for this election, the law is clear that subject to a few constitutional constraints — like the 15th (right to vote cannot be denied because of race), 19th (women’s right to vote), 24th (abolition of poll taxes) and 26th (right to vote at age 18) amendments — states’ rules prevail.
What does this mean in terms of when we will officially know the election results?
This question is complicated and depends on which office is up for election. Generally, an election is final when the canvassing authority issues a certificate of election. That certificate is what allows a person to take their office, and this is often issued weeks and sometimes months or more after the election. Practically speaking, the election results are final when enough of the votes are in and counted such that any uncounted votes could not make a difference.
When this happens, the media declare winners. Nearly all the time the declared winners receive their offices. But there are steps, which vary by state, that happen from the completion of the first official count and when the person elected can take office.
After the first unofficial count, candidates can ask for a recount. Depending on the state, the race sometimes has to be within a certain percentage to ask for a recount, but sometimes, in some states, any candidate can request a recount. States differ whether the government or the candidate has to pay for the recount.
After the recount period passes, a canvass takes place. This is usually done by a political body that reviews all of the returns and tallies and certifies that the results are accepted. Up until this point, under most states’ laws, courts are not to interfere with the count. But, once the canvass is complete, the losing candidate can file what is called an election contest. This is often a judicial proceeding, but legislative offices like the U.S. House of Representatives and state legislatures are typically heard by the respective bodies that will receive that member. During an election contest, the contestant has to show that, when counting the legal votes only, they would have prevailed.
In the rare circumstance that a winner cannot be determined, a new election for that office only will be ordered. Although this process can take weeks from start to finish, the vast majority of elections are resolved when the unofficial count is complete, usually within 24 hours of Election Day. This year it could be a few days longer in many states that allow the later receipt of mail ballots.
When polls close, media outlets often start to “call” winners. Do you think they will be more circumspect about that this year?
Ever since the 2000 presidential election of Bush v. Gore, media have been much more careful and scientific in announcing winners. In that election, many of the national media declared Florida for Gore, many declared the election for Gore, but ultimately Bush prevailed.
Media have since then gotten even better at making these calls, and given all the sensitivity this year to democratic norms, I think the media will only call races when they are 100% sure their decision is accurate.