The 2020 election is already underway in several states, but that doesn’t mean the rules aren’t still changing. (We’re tracking them all here.) In the past eight days alone, four important swing states have tentatively extended the deadline by which mail ballots must be received.
- The Pennsylvania Supreme Court ruled that ballots can arrive as late as Nov. 6 and still count as long as no evidence (e.g., a postmark) exists that they were mailed after Election Day (Nov. 3).
- A state judge in Michigan decreed that ballots can be counted as long as they are postmarked by the day before the election (Nov. 2) and received by Nov. 17.
- A federal judge ordered Wisconsin to count absentee ballots that are postmarked by Nov. 3 as long as they arrive by Nov. 9.
- And North Carolina reached a tentative court settlement with plaintiffs that, among other things, would allow ballots to count as long as they are postmarked by Nov. 3 and arrive by Nov. 12. (However, the settlement still needs to be approved by a judge before it officially goes into effect.)
Importantly, however, these changes aren’t set in stone; Republicans may continue to contest them in court. At the very least, GOP legislative leaders in Wisconsin have already appealed that decision to the 7th Circuit Court of Appeals, and Republicans say they plan to take the Pennsylvania decision to the U.S. Supreme Court.
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If they stand, though, these rulings could be significant. First, they obviously make it easier to vote by mail — a more generous window for accepting ballots means fewer voters will be disenfranchised for mailing their ballots too late. In terms of the horse race, that’s likely to give Democrats a small boost in these states, since Democrats are far more likely than Republicans to say they plan to vote by mail this year.
Second, these rulings increase the odds that media outlets won’t be able to declare a winner in these four states on election night. And given the pivotal role these states will play in the presidential election — there’s a 56 percent chance that one of them will decide the Electoral College, according to the FiveThirtyEight presidential forecast — this in turn increases the odds that we won’t know the winner of the presidential race for days after the fact.
We haven’t written much about which states are expected to report most of their election results on election night and which will be delayed, because it’s actually pretty difficult to predict. Several different variables factor into how quickly a state counts its votes, including how many people cast mail ballots (which take longer to count than in-person ballots), how early the state is allowed to start processing mail ballots, and how well-resourced state election officials are. And with new court decisions and executive orders being issued on what feels like a daily basis, those variables are still subject to a lot of change.
But perhaps the surest sign that a state won’t be called on election night is if it accepts mail ballots that arrive after Election Day. By definition, any results these states release on election night will be incomplete because at least some ballots — and probably quite a few — will still be in transit. And with the recent developments in Pennsylvania, Michigan, Wisconsin and North Carolina, that means a majority of presidential swing states now fall into this category (at least for now).
|State||Tipping-Point Chance||Mail Ballot Receipt Deadline||Accepts Ballots After Election Day?|
|North Carolina*||5||Nov. 12||✓|
|New Hampshire||2||Nov. 3|
Right now, it looks like our best chance of getting a call on election night in a major swing state is in Florida. In addition to not accepting ballots that arrive after Election Day, the Sunshine State begins processing mail ballots several weeks early, enabling them to release results extremely quickly on election night. On paper, Arizona also looks like it could be called on election night, although it doesn’t have a good track record of fast counting: In 2018, it took almost a week to declare a winner in some close races there.
But it looks increasingly unlikely that we’ll be able to declare an election-night winner in Michigan, Pennsylvania and Wisconsin. In addition to possibly having thousands of ballots still in transit on election night, these states will probably be slow to count even the mail ballots that have already arrived, since all three prohibit processing mail ballots before Election Day. (By contrast, North Carolina is allowed to process mail ballots well in advance, so we should learn the results of mail ballots that arrive by Nov. 2 shortly after polls close — but then have to wait days for the remainder.)
If Biden is leading in those states in the wee hours of Nov. 4, that may be the ballgame: Because mail ballots are expected to lean heavily Democratic, his margin will probably only increase as more mail ballots are counted. But if Trump is leading in these states, we could be in for days of waiting on the edge of our seat for every ballot dump. Since this is a distinct possibility, we must continue to prepare ourselves for a world in which we won’t know the identity of the next president until mid-November.