Tuesday is Election Day or, more properly in the age of early voting, the last opportunity to vote. That means Tuesday night is Election Night, but that doesn’t necessarily mean we’ll know tonight who won. The torrent of absentee ballots — many mailed in, others delivered in-person — means that many states won’t have their final tallies for days yet.
Some states don’t allow ballots to be processed before Election Day, which means the whole system of checking to make sure signatures are legit and so forth can’t begin until the polls close. This includes two big swing states — Pennsylvania and Wisconsin.
Twenty three states — including this year Virginia — plus the District of Columbia don’t go by the delivery date on mail ballots, they go by the postmark date — just as the Internal Revenue Service doesn’t require your taxes in hand by April 15, just that they’re mailed on or before April 15.
These 23 states that count ballots arriving after Election Day are a mix of liberal states (New York, for instance) and conservative states (Mississippi), states whose outcomes are known well in advance (California, the second-most anti-Trump state in 2016 and West Virginia, the most pro-Trump state) and those that are considered swing states (most notably Michigan, Nevada, North Carolina, Ohio and Pennsylvania). It’s those states that, depending on this year’s results, may mean we won’t know the winner for several weeks.
Virginia will accept ballots up until noon Friday as long as they’re postmarked on or before Election Day. Pennsylvania allows three days, but Nevada allows seven days, North Carolina nine days while Ohio accepts ballots 10 days after the election if they’re properly postmarked, Michigan 14 days. Those aren’t even the latest deadlines. That distinction belongs to Washington, which takes ballots 20 days after the election if they’re postmarked correctly. Keep in mind those are the dates by which ballots are accepted to be counted — actually counting them might take even more time. Everyone should hope the election doesn’t come down to a handful of late-arriving ballots in some of those swing states — although late-arriving is the wrong phrase. Under the laws in those states, they’re still very much on time.
Some of these laws are new — Virginia’s three-day grace period is. Others, though, aren’t. They just haven’t mattered this much before because we haven’t had this many mail-in ballots. However, this is a trend that has been underway for decades now. It might seem to some a liberal innovation but its growth is a response to that most conservative of forces — the free market, and consumer preferences. Over the past two decades, we’ve seen a decided trend toward people voting some way other than showing up at the polls on Election Day. For some, that’s been increased absentee voting, with some of those ballots mailed in. For others, that means “early voting” — which Virginia just adopted this year.
In the 2004 presidential election, some 20.5% of voters cast ballots without going to the traditional polling place. By 2016, the figure was up to 40.8%, according to the U.S. Election Assistance Commission — and 16 states had more than half their ballots cast before Election Day. This year, the percentage is expected to be — well, a lot more than that. In Virginia, anyone who went to the registrar’s office and voted early has already had their ballot run through the counting machine just as on a “normal” Election Day. But anyone who mailed in their ballot still has to have those ballots opened and verified. That’s what will take longer this time around — not to mention those ballots that come in before the Friday deadline.
How long? Well, nobody’s quite sure. The Washington Post analyzed how long it took some states to produce results of their presidential primaries his spring after many voters switched to absentee ballots. In Virginia, it took only about four hours, the quickest of any of the states. Ohio took 10 hours, or close to dawn. North Carolina took 12 hours. New Hampshire took a day. But Arizona, Pennsylvania and Wisconsin (just to name the swing states) took six days each to count all the ballots. Georgia took 10 days. New York isn’t a swing state but was the slowest at 10.5 days.
Now, keep in mind that Virginia’s grace period for mailed-in ballots didn’t exist for the primary; that didn’t become the law until July 1. We don’t know how many voters will wait until Election Day to put their ballots in the mail. Ideally, not many. Well, even more ideally, none — no one should trust the post office to deliver the mail that quickly. However, if a Virginia race is razor-thin, we can’t say for certain who won until those last ballots are counted. That’s nerve-wracking enough if there’s some local office at stake; we’d rather not think about what might happen in the coming days if there is uncertainty about the outcome of the presidential race until the last mail ballots come in.
The obvious takeaway from all this: Don’t expect to find out Tuesday night who the winner is, unless there’s such a lopsided win that either (a) the winner doesn’t need the results from some of the other late-counting states or (b) the winner’s lead in those states is so insurmountable that the last ballots to be counted won’t make a difference.
Partisans on both sides may need to practice a most un-American trait: Patience.
All this raises an important procedural question: Who calls the election?
Pay attention, now, this is important: Not the candidates. Either one or both can declare victory but that has no legal force whatsoever. Not the news media, either. Many “project” a winner — more on that to come Tuesday — but that has no legal force, either. Elections get called — legally speaking — by each state’s election board and that doesn’t happen right away. In Virginia, the returns posted on election night on the State Board of Elections website are decidedly unofficial until they are certified by the state board on Nov. 16. Every state has a similar process, just different deadlines. We are all about to get a refresher course in federalism — 50 states, 50 different sets of rules. Constitutionally speaking, the election results aren’t official until the new Congress officially receives each state’s electoral votes on Jan. 6, 2021.