Election Night 2020: What to Expect

Brownstein Hyatt Farber Schreck

The election process this November will, without a doubt, look different than in prior years. Due to the COVID-19 pandemic, more voters are expected to vote by mail-in and absentee ballots, states are making some changes to electoral procedures to accommodate these realities and courts are weighing in on their legality. Some delays in ballot counting and result certification are expected.

This alert examines how 2020 could play out differently from previous years. After briefly reviewing the historical norms of presidential elections, this alert explores the steps states have taken to mitigate confusion and anticipate potential issues that may arise on Election Night and beyond.

Election Night: Historical Perspective and State Preparations

A “normal” presidential election follows a predictable sequence of events: most voters cast their ballots at designated polling places on Election Day, the outcome of certain jurisdictions is predicted by media outlets in accordance with historical voting records and exit polls, and ballot totals are made official as precincts follow established procedures and report final tallies.

On Nov. 3, this process will have deviated from the norm before step one. As has been widely reported, many states have established alternative voting methods in response to the COVID-19 pandemic. In addition to implementing safety precautions at polling places, state and local election officials have sought to mitigate the spread of the virus by encouraging absentee and mail-in voting. Before the third presidential debate, approximately 50 million voters had already cast ballots.

Compared to previous years, votes cast through the mail are expected to increase between 40% and 50%, totaling around 80 million. As of mid-October, around 12 million ballots had already been submitted through the mail. The expected doubling of mail-in ballots will impose demands on the U.S. Postal Service and delay the tallying process.

To adjust to the increase, many states have extended the date by which they will accept mail-in ballots. Broadly speaking, the deadline falls into two categories: (1) only ballots received by election officials on or before Election Night will be counted, or (2) only ballots postmarked on or before Election Night, despite being received after Nov. 3, will be counted. For the latter category, states have adopted various extended deadlines by which they will accept ballots. California allows ballots postmarked on or before Election Night to be counted 17 days past the election.

While the changes vary by state, below are the deadlines by which mail-in ballots must be received in some key battleground states. Regardless of the reception deadline, all states in the chart below require ballots to be postmarked by Nov. 3.

State

Receive Deadline

Florida

Nov. 3

Wisconsin

Pennsylvania

Nov. 6

Minnesota

Nov. 10

North Carolina

Nov. 12

Michigan

Nov. 17

There are currently a number of pending court cases involving the election protocol of key states and whether or not they violate federal law, some of which have been sent to the U.S. Supreme Court for review. Recently, on October 19, the Court split 4-4 on hearing a Pennsylvania case about whether or not ballots received after Election Day could be counted. Because the Court elected not to hear the case, it left intact the Pennsylvania Supreme Court’s decision that ballots postmarked on or before Election Day would be counted in the commonwealth so long as they are received by 5:00 p.m. on November 6.

Similar cases are being considered by various circuit courts. As of this writing, there currently is pending litigation concerning Arizona, Florida, Georgia, Maine, Michigan, Nevada, New Jersey, North Carolina, Ohio, Tennessee and Texas. The Pennsylvania Supreme Court recently decided that ballots could not be challenged solely because the signature on file did not match the signature that accompanied the mail-in ballot.

Given that these battleground states are likely to be responsible for the election outcome, a close election may not result in a clear winner on Nov. 3 or 4. It is possible the outcome will be unknown for several days after the election. A situation similar to that seen earlier this year in New York primary races could be repeated. In those races, due to a record number of mail-in ballots, the vote tabulation in the Democratic primaries lasted for months. Although the primaries were held on June 23, official winners were not named until early August. Similar to what happened in New York, the delay in accepting absentee ballots could postpone the announcement of the presidential winner by at least two or three weeks—opening the door to unprecedented uncertainty and legal challenges.

Election Night 2020: Potential Outcomes

Due to the acceptance of ballots beyond Nov. 3, it is unlikely President Trump or former Vice President Joe Biden will be named the clear victor on Election Night. The only scenario that may avoid this uncertainty is a decisive victory by either candidate.

Due to Republican concerns that mail-in voting could be subject to fraud and particular emphasis from Democratic lawmakers that in-person voting could expose voters to health risks, some experts anticipate that more Republicans will vote in person on Election Day (although, it is possible these numbers are mitigated by the large numbers of early in-person voting we currently see). As a result, some forecasts predict President Trump may appear to win on Nov. 3, before some states are able to collect or count absentee ballots. This so-called “red mirage”—in which President Trump appears to have won the election before all ballots have been tallied—will be followed by the counting of mail-in ballots, which some election experts argue could favor Biden. For this reason, some election pundits are preparing for a situation in which President Trump appears to win on Election Day, followed by a period during which Biden appears to reduce or overtake President Trump’s lead.

Regardless of what happens on Election Day or in the subsequent weeks, the official winner of the 2020 presidential election will not be final until the Electoral College certifies the winner on Dec. 14, 2020.

State Certification and Electoral Votes

States vary in their procedures to certify their elections, but per federal statute, all states must observe two important deadlines to appoint and send their electors to the Electoral College; this year, those deadlines are Dec. 8 and Dec. 14. On Dec. 8, states must resolve any court disputes over the election results and finalize their certifications. State ballots do not directly elect the president and vice president but appoint the electors for each state who will cast the deciding votes in the Electoral College. The college convenes on the first Monday after the second Wednesday in December (Dec. 14).

While the electoral result usually tracks the popular vote, the winners of the 2000 and 2016 presidential elections—George Bush and Donald Trump—lost the popular vote. The ensuing court challenges from 2000 set legal precedent for the Supreme Court to intervene in the event of contested electoral outcomes. The court upheld Florida’s controversial certification that Bush won the state, denying a request to manually recount irregular ballots because there wasn’t enough time to finish the recount before Florida’s statutory deadline to certify the results (Dec. 12, 2000).

However, there is no legal precedent for the potentiality that states miss the deadline to send their electors to vote. Pandemic-related disruptions could significantly delay states’ ballot counting and resulting certification processes, which could lead to disputes and court challenges over the winner of a state.

In the face of delays, state assemblies could attempt to submit their own electors, and states with divided governments (e.g., Florida and Pennsylvania) might present two different sets of electoral votes, backed by each party. Without a clear path forward, this could lead to a divided vote in Congress (as each chamber would ostensibly accept electoral submissions on a partisan basis) or force the Supreme Court to intervene.

That said, these potential scenarios are unlikely, as the results would have to be close enough (and election infrastructure sufficiently dysfunctional) that states would be unable to certify the count in the six weeks between Election Day and the Dec. 14 deadline. At a minimum, it is reasonable to expect litigation around states’ certification processes, as in Florida in 2000.

Congressional Vote Count

On Jan. 6, 2021, Congress must count the electoral votes. If no candidate wins a majority of electoral votes or if the count of votes is disputed, then the House and Senate would determine the presidential and vice presidential winners of the election per the Electoral Count Act of 1887:

  • The House of Representatives would be responsible for electing the president from the top three vote-getters. The 12th Amendment dictates that the House votes by state delegation, with each state casting one vote. Although the House is comprised of more Democrats, there are currently 26 states that have majority Republican delegations; this means the majority party in the House could still lose the election if the minority party controls the majority of state delegations.
  • The U.S. Senate would be responsible for electing the vice president from the top two vote-getters. Unlike the House, the Senate votes in the ordinary fashion, with each senator casting one vote for the vice president.

A vote count in the House could also be altered if another rise in coronavirus infections forces some lawmakers to quarantine. Alternatively, if the House cannot choose a president because no Electoral College members were appointed, or for some other reason, Congress would run up against another important deadline: Inauguration Day.

Inauguration

The 20th Amendment dictates that the terms of the incumbent president and vice president end on Jan. 20, and if the House is unable to choose a president, the 1947 Presidential Succession Act directs the speaker of the House (currently Rep. Nancy Pelosi (D-CA)) to take the position of acting president. If the speaker is unable to fill the role, the next in line of succession, the president pro tempore of the Senate (currently Sen. Chuck Grassley (R-IA)), will assume the position.

Assuming Speaker Pelosi is reelected to the speaker position in the 117th Congress, she would become acting president if there is no clear winner by Jan. 20 and serve until the final results are clarified.

It is worth noting the possibility—however unlikely—that larger election issues could also disrupt the reelection of House and Senate members, whose terms end on Jan. 3. In the event that Speaker Pelosi’s term runs out before her reelection race is decided, she would be skipped in the line of succession, and the president pro tempore of the Senate—the most senior member of the majority party—would become acting president. This may not be Sen. Grassley if Senate Democrats find themselves in the majority after their colleagues’ terms expire on Jan. 3.

Finally, there remains a broader question over whether the 1947 Presidential Succession Act is in fact constitutional. The succession clause of Article II of the Constitution holds that an “officer” should act as president if the president and vice president are incapacitated, and there is some debate as to whether members of Congress, or only executive officials, are considered “officers.” Additionally, some experts argue that because members of Congress are prohibited from serving concurrently in the executive branch, the speaker of the House or president pro tempore of the Senate would be unable to act as president and retain his or her seat as the succession clause requires.

As the 1947 succession statute has never been triggered, it is conceivable that Speaker Pelosi’s assumption of the role of acting president could be challenged—perhaps by Secretary of State Mike Pompeo, the fourth in line of succession according to the 1947 statute and the first cabinet officer after the speaker and president pro tempore of the Senate. The question of succession may reach the Supreme Court, which could decide the matter or leave it to the political process.

Conclusion

The pandemic and wave of early voting will strain the election system in unprecedented ways. Ballot counting and result certification processes will likely be delayed and more complicated than in prior elections, particularly in battleground states where the presidential race is predicted to be very close. States’ electoral procedures have already been challenged in court, and litigation is still pending in numerous states. If the election is close, we can expect to see additional litigation.

What is clear, is that things may not be clear when we wake up on Nov. 4 and the nation may find itself in uncharted post-election territory.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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