‘It’s going to require patience’: With delays and litigation likely, observers urge calm ahead of election

Election night will look different this November. With limited in-person voting capacity and an unprecedented level of mail-in voting expected across the country due to COVID-19, results are likely to take days and perhaps even weeks to count in some key states that could decide the presidency, election officials say.

That’s nothing new for voters in Washington, where universal vote-by-mail and safeguards that allow any ballots postmarked by Election Day to be counted mean tallying votes routinely stretches through “election week.” Officials and voting experts say the nation will need to take a cue from Washington voters and exercise patience on election night.

“Election night is not going to be the final count,” Spokane County Auditor Vicky Dalton said. “It’s going to take days and – depending upon how states work – even weeks before the final numbers are tallied, and we’re accustomed to that in the state of Washington.”

“People just need to have patience,” Dalton, a Democrat, said, “and I know that’s very difficult, but that is what is going to be necessary for this particular election.”

That’s a tough ask in an environment where both Republicans and Democrats already are raising fears of voter fraud and efforts to steal the election.

President Donald Trump, who requested a mail ballot from Palm Beach County for Florida’s recent primary election, has repeatedly, and without evidence, raised the specter of “massive” voter fraud. Even after winning the 2016 election, Trump claimed that millions of people had voted illegally for his opponent. After Democrat Kyrsten Sinema won a 2018 Senate race in Arizona, the president tweeted, “Electoral corruption – Call for a new Election?”

Democrats have made similar allegations, including in Georgia’s 2018 gubernatorial race, in which former state lawmaker Stacey Abrams narrowly lost to then-Secretary of State Brian Kemp, who declined to step down from his role overseeing elections while running for governor. Before the results were certified, Democratic Sens. Sherrod Brown of Ohio and Cory Booker of New Jersey both alleged the race was being “stolen” from Abrams through voter suppression.

Democratic presidential nominee Joe Biden told “The Daily Show” host Trevor Noah in June that Trump “is going to try to steal this election,” a warning he repeated to donors in July.

Trump and his allies have focused their ire in recent months on mail-in voting, claiming its widespread adoption amid the pandemic will enable “massive fraud.” The Trump campaign has gone so far as to sue states to limit their use of vote-by-mail, but after the campaign failed to produce evidence to back up its fraud claims, a Trump-appointed judge in Pennsylvania effectively shut down the case in that state Aug. 23.

Rep. Jim Jordan, an Ohio Republican and prominent Trump surrogate, said in an Aug. 24 House hearing that Democrats were clamoring over delays at the Postal Service in order to cause “chaos and confusion” over mail-in voting, suggesting that votes counted after Nov. 3 would be illegitimate.

“I think they know on election night President Trump’s going to win,” Jordan said. “They know on Election Day, the vote count on Election Day, President Trump’s going to win, and they want to keep counting.”

That kind of framing “is doing a massive disservice to the American public,” said Justin Levitt, an election law expert at Loyola Law School in Los Angeles, “because there is no ‘on Election Day he’s going to win.’ ”

“Nobody crowns the victor of a football game after the first quarter’s over,” said Levitt, a former Justice Department lawyer. “And so saying that the president is going to win Election Day just means – and this is likely to be true – that more ballots supporting the president will come in at a given time in the process.”

Levitt said recent years have seen a trend election observers have dubbed a “blue shift,” where GOP votes tend to come in early and more votes for Democrats are counted after Election Day. A range of factors have contributed to this pattern in recent elections, including the fact that provisional ballots – which take longer to count – tend to favor Democrats, and Democratic voters tend to live in more populous areas with more votes for officials to tally.

The pandemic is likely to exaggerate that pattern this November, Levitt said, with polls indicating some 80% of GOP voters intend to cast their ballots in person while at least two-thirds of Democratic voters plan to vote by mail. Eighteen states, including Washington, and the District of Columbia will accept ballots received after Nov. 3 as long as they are postmarked by – or in some states the day before – Election Day.

Washington Secretary of State Kim Wyman said that in the years before Washington transitioned to statewide mail-in voting in 2011, absentee votes tended to favor GOP candidates, a pattern she ascribed to older, more conservative voters often preferring to vote by mail.

Dalton said this trend persisted even when Spokane County switched to universal vote-by-mail in 2006. She pointed to that year’s race for county assessor, when Republican incumbent Ralph Baker trailed by more than 4% on election night but came from behind to win thanks to votes counted in the following days.

More recently, Spokane City Council President Breean Beggs overcame an election-night deficit to defeat his more conservative opponent last November, suggesting a local “blue shift” mirroring a statewide trend, which Wyman attributed to Democrats’ more robust “get out the vote” effort in the days before Election Day.

Wyman, a Republican, said her counterparts around the country are anticipating unprecedented, “off-the-charts” levels of vote-by-mail turnout this fall.

“What you’re going to see election night,” Wyman said, is that “the poll-site voting states are going to have all of their in-person ballots counted by midnight or early in the morning on Wednesday, but I would anticipate that we’re going to see really high volumes of mail-in ballots that will have been received and will be left to count.”

But Washington’s top election official emphasized that having to wait for official election results is a sign the system is working, not evidence of malfeasance.

“It’s going to require patience,” Wyman said. “What’s normal here in Washington is going to be the norm across the country. You’re going to have large volumes of absentee ballots that hit right at the end, and if the states don’t have the capacity and capability to get through those ballots, it’s going to slow the official certification of those results, and it’s going to take a while before we know who won.”

That new reality also means news outlets, which have traditionally “called” races based on projections before officials finish counting the votes, will need to approach election night differently.

“The American media plays a bizarrely outsize role in American elections, occupying the place of most countries’ national election commissions,” New York Times media columnist Ben Smith wrote Aug. 2. “The media actually assembles the results from 50 states, tabulates them and declares a victor.”

Levitt said he hopes the media will adjust to this new reality, and voters should understand the red and blue maps they’ve grown accustomed to seeing on election night coverage could be less accurate this year.

“Like all predictions, they’re based on past practices,” Levitt said. “This year in particular, the mode of voting will have changed for so much of the country that those models are just going to be less reliable. That doesn’t mean the results are less reliable, it means we’re less able to predict.”

Wyman said she worries with several key swing states anticipating unprecedented numbers of mail-in ballots amid Postal Service delays, a contested presidential election could be decided in the courts. Idaho is one of 32 states where mail-in ballots received after Election Day, even if they were postmarked days earlier, are rejected.

“It’s going to be an emotional reaction,” Wyman said. “The voter put their ballot in a week before Election Day and it arrived on Wednesday and you’re not going to count it? And it’s hard to argue against that. I think that’s one where logic is going to say it’s patently unfair to the voter if you’re not allowing for a postmark.”

Wyman said she sees Jordan’s statement as an example of gearing up for possible post-election legal battles.

“I think you’re seeing both sides posture for the potential that they’re not going to win, and it’s posturing for litigation on the back end,” she said. “I think both sides need to just dial back the partisanship and let election officials do their jobs and do it in a transparent way. We have to just step back from the partisan rancor because it’s not helping the average voter believe that the results are fair.”

Wyman isn’t alone in her concern about voters – and candidates – accepting the outcome of November’s vote. An April report by a group of 25 election experts warned of a recent erosion of trust in American elections.

“Although a decade ago concerns about peaceful transitions of power were less common,” the experts wrote, “Americans can no longer take for granted that election losers will concede a closely fought election after election authorities (or courts) have declared a winner.”

In June, a bipartisan group of former government and military officials quietly convened to game out potential outcomes of a contested presidential election.

Multiple scenarios ended in massive street protests, while another saw Washington, Oregon and California threaten to secede from the United States.

Levitt said one way to avoid such a scenario is for voters to make a plan to ensure their votes are counted. If voting by mail, that means checking that their registration is correct, requesting an absentee ballot if needed – Washington voters will have ballots mailed to them automatically – and voting early.

And the most important piece of advice Wyman, Dalton and Levitt all shared: be patient on election night.

“Be prepared to go to bed before you know the result,” Levitt said. “That’s not weird. It’s not that the system is broken. It’s that the system is working. We need to give people time to actually count the votes.”