Every four years, on the first Tuesday after the first Monday in November, the political press hosts its biggest planned news event: election night. It’s the blockbuster season finale political reporters and television hosts, not to mention the candidates, have been building up to for at least two years.
Election night is supposed to be a night of hyper cable news hosts, color-coded Magic Walls, flickering needles and overwrought homilies to U.S. democracy that ends, maybe in the wee hours, with the American People making a Decision. One person will win and be named the next president of the United States. There will be speeches ― one, a concession, the other, claiming victory. Ratings will be high.
But the 2020 election will be different. Nearly every state in the country anticipates a radical increase in voters casting their ballots by mail to stay safe amid the uncertainty of the coronavirus pandemic. This will fundamentally alter the speed at which votes are tabulated. If this year’s presidential election is as close as five of the last six elections ― 2008 being the exception ― it is unlikely a victor will be declared on Nov. 3.
As a trickle of results come in over the ensuing days or weeks, President Donald Trump and Republican leaders will almost certainly attack the credibility of the elections with false and unfounded allegations of voter fraud. Trump did this in 2016 even after he won the election. And Republican leaders like former House Speaker Paul Ryan (R-Wis.) and House Republican Leader Kevin McCarthy (R-Calif.) both did so after the 2018 midterm elections.
Democratic elections require voters to believe in the legitimacy of the process. False accusations of fraud from one party are designed to undermine the legitimacy of the election of their opponents. But these accusations also strike at the heart of our democratic elections and republican government.
We need to take action to deprive these accusations of oxygen. It’s time to turn down the hype and end election night in America as we know it.
Absentee Ballot Flood
An unprecedented number of mail ballots cast means an unprecedented number of mail ballots to count, a more time-consuming process than counting in-person votes. State and county election officials in key swing states were already asking for more money to speed the processing of an anticipated uptick in absentee ballots before the pandemic made in-person voting less safe. Now, they will need even more money as pandemic-induced business shutdowns deplete state budgets and tax revenue.
Michigan, which Trump won by just 11,000 votes in 2016, was the first state to experience such a crunch during its March 10 presidential preference primary election. County election clerks sought funds from the Republican-controlled legislature to help hire staff to handle the anticipated increase in absentee ballots after voters approved a referendum allowing no-excuse absentee voting in 2018. The legislature’s refusal caused election results to be delayed by a day.
Another issue that will cause delays in the reporting of mail-in ballots is when they can be opened and counted. Michigan law requires election officials to only open and count them on Election Day. Other states, including swing states like Arizona, Florida and North Carolina, allow absentee ballots to be opened and counted before Election Day.
There are still delays in reporting the results of mailed-in ballots even when states do allow them to be opened and counted before Election Day. Arizona, which Trump won by about 91,000 votes, has a very high rate of votes cast by mail and allows mailed ballots to be opened and counted when they are received. Still, the state’s election results are regularly delayed because mail-in ballots are allowed to be received on Election Day. Those must be verified as legitimate and checked with in-person votes to ensure no one voted twice before they can be counted. Sen. Kyrsten Sinema (D-Ariz.) was not declared the winner of her 2018 election until six days after the election.
Pennsylvania, which only allowed no-excuse absentee voting in 2019, is on the other end of the spectrum. This crucial swing state that Trump won by a little more than 44,000 votes mandates that ballots only be opened after the close of Election Day polls at 8 p.m. A full count of Pennsylvania votes is expected to take up to three days, according to a report by Mother Jones.
Absent a landslide victory for either Trump or presumptive Democratic Party nominee Joe Biden, the rise in absentee voting makes it unlikely that election night in America will be a decision night for broadcast networks, cable news or digital outlets. Wolf Blitzer will, at least, be prepared this time.
Fraudulent Fraud Accusations
The biggest problem with slow-rolling results after Election Day as mail-in ballots are counted is that Trump and the Republican Party can use this delay to cast doubt on the election’s outcome with accusations of fraud.
After winning the 2016 election but losing the popular vote, Trump claimed, falsely and without evidence, that he would have won the popular vote “if you deduct the millions of people who voted illegally.”
California was one of the states Trump singled out for his false accusation of voter fraud. In 2014, the nation’s most populous state passed an election reform law allowing election clerks to count absentee ballots postmarked on Election Day and received up to three days later. This means that the state’s vote total is not finalized for many days after Election Day. In 2016, Hillary Clinton’s popular vote total continued to rise after Election Day, largely due to the ongoing count of votes in California. This fed Trump’s narcissistic ire.
But Trump isn’t the only one to make false and evidence-free claims of voter fraud due to the time it takes California to report its mailed-in ballots.
After Democrats won seven House seats previously held by Republicans in California during the 2018 midterm elections, then-Speaker Ryan said the state’s election “just defies logic to me.” In a number of these seats, Republican candidates led on election night but ended up losing days later, after all late mail ballots were counted.
“We were only down 26 seats the night of the election and three weeks later, we lost basically every California race,” he said.
Ryan’s spokesperson later released a statement claiming his boss “does not dispute the results.”
McCarthy, the current House Republican leader, has also attacked his home state’s election laws by positing false conspiracy theories that California changed the law so that voters casting mail ballots no longer need to match their signature to the one the state has on file and that voters can hand in empty ballots that can be filled out later. He linked these unfounded claims to the seven Republican losses in California in 2018.
More recently, McCarthy attacked House Democrats for getting $400 million in the CARES Act to help states prepare for more mail-in voting by falsely claiming the process is plagued by “a lot of fraud.” More than 70% of voters in the largest county in McCarthy’s congressional district voted by mail in 2018.
The greatest danger in all of this is that limited results reported on election night will show one candidate winning — perhaps Trump — but later, mail-in ballots counted after Election Day could reverse that trend and bring the other candidate into the lead and the White House.
As Trump and Republicans have demonstrated, they will attack and undermine faith in the election process whether this occurs or not.
Prepare The Audience
When Wisconsin held its April 7 elections, politicians in the state were roundly criticized for either acting too late to delay the elections or forcing the state to go ahead with in-person voting during a pandemic.
A federal district court judge initially extended the deadline for receiving votes cast by mail to April 13 while also mandating that the state not begin reporting results until that date. The Supreme Court overruled this extension of absentee voting, but not the result reporting delay. And so, Wisconsin reported results from its April 7 election on April 13.
This delay eliminated the possibility that any changing results after Election Day would cause confusion and paranoia. There could be no claims of fraud as an Election Day lead for one candidate gave way to a loss as more votes were counted.
This might be an extreme solution to the problem posed by Trump’s surefire effort to whip his supporters into a frenzy with fraud claims as vote totals change after the November election. But it would completely eliminate the psychological impact that counting votes after Election Day appears to have on partisans.
A team of election law, media and technology experts led by University of California, Irvine, professor Rick Hasen, the author of “Election Meltdown,” released a list of recommendations related to this very problem last week. Barring a complete delay in reporting vote totals until all ballots are prepared to be counted, as in the case of Wisconsin, the experts recommended that the media prepare viewers and readers for the reality that a winner will not be declared on election night and avoid amplifying any false accusations of fraud from the president or any other politician.
“Journalists should report that vote counts continuing beyond Election Day are normal and that errors and delays are not necessarily indicators of nefarious intent,” the report states. “Opportunistic elites will seek to take advantage of this confusion, particularly if it can harm the standing of the side that is likely to win. Irresponsible coverage that amplifies such claims runs the risk of encouraging more fundamental challenges to accepting the outcome of the election itself, a compact that is at the heart of democracy.”
“Absent a landslide victory for either Trump or presumptive Democratic Party nominee Joe Biden, the rise in absentee voting makes it unlikely that election night in America will be a decision night for broadcast networks, cable news or digital outlets.”
The press has changed its election night behavior in the past. In the infamous 2000 election, news networks first called the pivotal swing state of Florida for Vice President Al Gore, a Democrat, based on survey data produced by the media consortium Voter News Service. They then reversed that call and made the state too close to call. At 2:15 a.m. the next morning, Republican candidate George W. Bush took the lead. Within a matter of minutes, the networks and cable channels all declared Bush the winner of the Electoral College and the election.
Gore called Bush to concede, which led The New York Times to declare Bush the victor. As Gore headed to a rally of supporters to announce the bad news, the votes began to narrow Bush’s lead. Gore was told not to take the stage and he called Bush to retract his concession at 3:30 a.m.
The whiplash caused by preemptively calling Florida for Gore and the election for Bush led cable channels and newspapers to launch investigations into their election night coverage. A report commissioned by CNN labeled that coverage a “news disaster” that “created a premature impression” that Bush had won.
“Gore was perceived as the challenger and labeled a ‘sore loser’ for trying to steal the election,” the report continued.
The report called for an end to the use of exit polls and surveys to call states before their votes had been tabulated. CNN announced it would not use exit polls to call “close” races. The Voter News Service, blamed for the faulty exit poll data, was eventually scrapped after the data it collected for the 2002 midterm elections were also inaccurate.
The 2004 election between Bush and Democratic candidate John Kerry was also incredibly close, but the press did not call the election that night. Bush was not declared the winner until Nevada announced its results and Kerry conceded at 11 a.m. the next day. It was the first time networks did not declare a president before the sun rose on Wednesday morning since election night was introduced to television.
That is more than likely to happen again in 2020. It’s time for both the press and state election officials to start planning how to maintain the integrity of American democracy.
CORRECTION: An earlier version of this story described incorrectly how the date of Election Day is determined. It is set for the first Tuesday after the first Monday in November.