On The Trail: The fallacy of a conclusive election night

President Trump’s hostility toward mail-in voting in the midst of a global pandemic and a new Supreme Court decision blocking extended ballot deadlines in a battleground state have elections officials worried that two branches of government are undermining confidence in an election Trump is poised to lose.

Trump has increasingly demanded on Twitter that results be known on election night, a ploy apparently designed to exclude millions of people who vote by mail and whose ballots may not be counted immediately even if they arrive long before the polls close.

On Tuesday, the Supreme Court ruled that Wisconsin could only count absentee ballots that arrive by Election Day, spurning a Democratic request to extend the deadline.

Elections experts caution that counting millions of ballots, especially in a year in which turnout is projected to set a modern record, takes time. Established rules are in place to ensure a count that favors accuracy over speed, and recent history shows those rules take time.

“We’d rather get it right than fast,” California Secretary of State Alex Padilla (D) told The Hill in an interview Tuesday. “We shouldn’t confuse election night with results night.”

What’s more, some polling places are likely to remain open even after midnight, especially in underserved and minority communities where reducing the number of vote centers — a favored trick of those who hope to disenfranchise voters — has led to longer lines. Every state allows polling places to stay open to accommodate anyone who has joined the line by the posted poll closing time.

“Mail ballots are being blamed for some sort of delay, but what people are completely forgetting is that polling place results cannot come in until polling places are closed,” said Amber McReynolds, chief executive of the National Vote At Home Institute.

The concept of a conclusive result emerging on election night itself is an entirely modern construct, one that has occurred only a few times in recent years.

Trump’s own victory four years ago wasn’t assured until 2 1/2 hours after midnight, when The Associated Press concluded he would become the nation’s 45th president. Sen. John Kerry (D-Mass.) waited until the morning after Election Day to concede to President George W. Bush in 2004.

Bush had to wait even longer in 2000. He only knew he would be president on Dec. 12, 36 days after Election Day, when the Supreme Court ruled a recount in Florida should not continue.

Only in blowout elections have media outlets like The Associated Press been able to call races over on election night itself.

Ronald Reagan knew he would be president, and then that he would win reelection, before 9 p.m. in both 1980 and 1984, two contests in which he routed his Democratic opponents. Media outlets later agreed to wait to call races until polls closed in West Coast states, which meant Barack Obama had to wait until the 11 p.m. hour to know he had won both his races.

What’s more, even when the outcome is certain, no election becomes final until state elections officials — not the media companies with which Trump has so often feuded — certify results. No elected official takes office, no elector casts their ballot for president, because The Associated Press gives them permission.

“The simple fact that NBC calls it doesn’t mean the ballots are all counted,” said Michael Li, senior counsel for the Brennan Center for Justice’s Democracy Program. “The counting is never done on election night. There are always provisional ballots, there are always military and overseas ballots.”

In a state like California, the formal certification process can take a month. Counties have 30 days to finish processing ballots, and Padilla’s office conducts a post-count audit.

And California has a reputation for well-run elections. New York this summer took more than a month to certify primary election results that showed Rep. Eliot Engel (D) losing to a progressive challenger, a race that only drew about 90,000 votes.

This year, states are dealing with a deluge of early and absentee votes, driven by the coronavirus pandemic and the record-high enthusiasm among both Democrats and Republicans. All those votes take hours, sometimes days, to count; many states bar elections administrators from even beginning to count mail-in ballots until the polls have closed, even if those ballots were received weeks before Election Day.

Elections experts were alarmed, then, when Supreme Court Justice Brett Kavanaugh seemed to dismiss votes that are not immediately counted on election night. Writing in concurrence with the conservative majority’s decision to block extra time for Wisconsin ballots, Kavanaugh seemed to conflate early results with final results.

“States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” Kavanaugh wrote, even though many states allow ballots postmarked on Election Day to be counted if they arrive after polls have closed.

“Those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter,” he wrote, even though no state definitively announces results of an election on election night.

Kavanaugh is one of three members of the Supreme Court, along with Chief Justice John Roberts and newly minted Associate Justice Amy Coney Barrett, who worked on Bush’s legal team in Florida during the 2000 recount — when they asked courts to accept military ballots that had come in after Election Day.

“If we don’t have Supreme Court justices who are accurately citing election laws in states, we’re in for a pretty tough time,” McReynolds said.

To elections experts and administrators, the demand for immediate results is a fig leaf covering a deep insecurity about a full and complete count.

“Anybody who’s demanding final results on election night is clearly trying to spin the results, and possibly results that they may not like. Anybody who knows anything about elections knows it takes a little bit of time to get the count right,” Padilla said. “Those seeking to undermine confidence in our elections, including but not limited to foreign adversaries, would love nothing better than chaos and conspiracy theories on Nov. 3 and 4.”

On The Trail is a reported column by Reid Wilson, primarily focused on the 2020 elections.

Tags Absentee ballot Amy Coney Barrett Barack Obama Brett Kavanaugh Donald Trump election night Eliot Engel Joe Biden John Kerry

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