WASHINGTON — Kentucky won’t have final results of last week’s state primary until Tuesday. New York could take twice as long. In Pennsylvania, the state’s largest city, Philadelphia, was still tallying mail-in ballots nearly two weeks after its June 2 primary.
The unprecedented volume of mail-in ballots during the coronavirus pandemic has produced hiccups in some state primaries and operated smoothly in others.
But one thing is constant: States have shattered turnout records for primaries because of the deluge of mail-in ballots, forcing election officials to need days, even weeks, to count all the votes.
Fast-forward to the Nov. 3 presidential election, when all 50 states and the District of Columbia will vote the same day. Many states are expected to turn to mass mail-in voting again but this time for a presidential race that will draw significantly greater turnout than primaries.
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In the race between President Donald Trump and Democratic presumptive nominee Joe Biden, down to races for Congress and even local contests, voting experts have a warning: Unless there’s a clear and decisive winner, brace for an election week or weeks, not an election night.
“I think ‘weeks’ is potentially being generous,” said Joe Burns, a Republican election attorney for the Lawyers Democracy Fund.
Burns, a former election official with the New York State Board of Election, said it can already takes weeks to count mail-in ballots in states where just 5% vote absentee. “Well, if you go and increase the absentee ballots by a factor of 10, you would think it would take that much longer.”
He added: “If you’re a candidate, if you’re an election lawyer, don’t make to many plans for November.”
Worries about a ‘post-election crisis’
The media likes to crown presidential winners as soon as a candidate clears the 270-delegate threshold. Television networks projected Donald Trump the winner of the 2016 election around 2:45 a.m. ET. Barack Obama was declared the winner on election nights in both his victories, around 11 p.m. ET in 2008 and 11:20 p.m. ET in 2012.
The most drawn-out – and controversial – election in U.S. history was in 2000, when television networks declared George W. Bush the winner on election night, only to revert back to “too close to call” as votes trickled in from Florida. The contest effectively ended five weeks later on Dec. 12 when the U.S. Supreme Court halted a vote recount in Florida.
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Election experts worry a prolonged outcome this year could set the stage for greater controversial – potentially attempts by candidates to invalidate the results – because of the raging fight over vote-by-mail.
President Trump has accused Democrats of seeking to “rig” and “steal” the election by supporting expanded vote-by-mail during the pandemic, which he’s slammed without evidence as fraudulent. A campaign fundraising email last week called Democrats “thieves.” Biden said he’s wondered whether Trump would willingly leave the White House if he loses and that his “single greatest concern” is that Trump will “steal the election” by limiting voter access.
“It is extremely unlikely we’re going to have final results on election night,” said Lawrence Norden, director of the Election Reform Program for the Brennan Center for Justice at the New York School of Law. He called it a “different kind of election this year” that could mean at least several days to count all the votes.
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“This is a real concern because there’s so much disinformation around the election that people will use that to delegitimize the count. It’s why I think it’s so important (for) people to know ahead of time that’s going to be the reality. It doesn’t mean that there’s anything in wrong. It means that we’re doing our jobs to make sure the votes are counted accurately.”
Larry Diamond, a political science professor at Stanford University and fellow at the Hoover Institution, said a close election – and the public not understanding that it might take days or more to count mail-in ballots – could lead to an election fight like the U.S. has never seen.
“We’ve really got significant scope for an unprecedented post-election crisis in the United States,” Diamond said.
How all mail-in election states handle the load
Thirty-four states and Washington, D.C., already allowed all registered voters to vote by mail without an excuse before the COVID-19 pandemic. Thirteen states took action to send mail-ballot applications in primaries this year and in some cases for the November election.
In several of the 16 states where voters must provide an excuse to receive an absentee ballot – being over 65 years old, out of town during Election Day or in the military, for example – concerns about coronavirus now qualify as a reason. Most states made the change only for primary elections and are waiting to see whether to extend to November.
Five states – Colorado, Hawaii, Oregon, Utah and Washington – conduct elections entirely by mail by sending ballots to all registered voters. California will do the same for the November election.
“My concern is it’s going to take probably the entire month of November for most states to count their mail-in or absentee ballots, and we may not know the results of the election until the end of November,” said Kim Wyman, Republican secretary of state of Washington, which has conducted elections by mail since the 1991.
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By state law, Washington can start processing mail-in ballots 10 days before Election Day, giving counties a head-start to go through several time-consuming steps to verify authenticity. Early mail ballots typically account for half the overall vote in Washington. The early results are announced after voting ends. But because votes postmarked on or near Election Day trickle continued to arrive days later, it’s normal for vote-by-mail elections to take longer.
Wyman said she’s worried about the additional burden on states where absentee voting isn’t as historically prevalent. These states will still be required to maintain in-person voting while building capacity for mail-in voting through equipment and personnel. This includes having enough scanners, ballot sorters, signature verification machines and other equipment, as well as space to count the ballots.
“They are going to need to ramp this up,” Wyman said, calling on Congress to allocate more funds for elections. “And now we’re down to four months.”
State law changes key for timely results
Amber McReynolds, CEO of the National Vote at Home Institute, said having enough equipment won’t help much with producing timely results unless states rewrite laws allowing them to begin processing mail-in ballots ahead of Election Day.
Presidential battlegrounds such as Pennsylvania, Wisconsin and Michigan are among states considering legislation that would allow election officials to get a head start on processing absentee ballots.
“By not allowing that processing in advance they’re also creating a backlog and a stress on in-person voting that really isn’t necessary,” said McReynolds, who previously served as director of elections in Denver, where elections are conducted entirely by mail. “If they want to make sure their states aren’t the ones being waited on for results, they should make that adjustment as soon as possible.”
In Pennsylvania, 1.5 million people voted by mail for its June 2 primary – nearly 18 times the 84,000 who did in 2016, accounting for more than half the overall vote. It was the state’s first statewide election with no-excuse absentee voting. Historically, only 4% of Pennsylvanians vote by mail. A state auditor race wasn’t decided until 10 days after the election as counties tallied all the mail ballots.
All Pennsylvania voters will again be allowed to vote by mail in November.
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Complicating Pennsylvania’s ability to finish counting votes in the primary, according to Wanda Murren, a spokeswoman for the Pennsylvania Secretary of State office, six counties, including Philadelphia County, were granted an extra week to count and report mail-in votes because of protests over police brutality.
The state also had a spike in provisional ballots from voters who arrived at a polling site after they had previously requested mail ballots.
“We’re looking real closely at where things went most smoothly and where they didn’t, and what was the difference,” Murren said. “We already know the equipment makes a huge difference, the amount of staffing makes a huge difference.”
Public awareness seen as crucial
In the coming months, vote-by-mail advocates want to build public awareness on the potential elongated election timeline.
“I know we like instant gratification, but we need to come to terms with the fact that if the election is close we will not have results on Election Day this year and that’s okay,” said former Republican Pennsylvania Gov. Tom Ridge, who now co-chairs SafeVote, a nonprofit that is advocating for vote-by-mail expansion. “We should expect an election week rather than Election Day.”
Others believe more help is needed nationally for voter confidence if the outcome is in doubt for days or weeks.
William Galston, a senior fellow for the Brookings Institution’s Governance Studies Program, said in the “best of all possible worlds” an election with a large share of mail-in ballots will have a substantial gap between Election Day and the final results.
“What you need is not just better mechanics, but also a very substantial bipartisan leadership consensus declaring itself in advance opposed to any efforts to delegitimate the election by either wide.”
He suggested assembling a panel with the likes of Republican Senate Majority Leader Mitch McConnell, former Democratic Majority Leader Tom Daschle and even former presidents.
“We’re going to need an overall canopy of legitimization in order to prevent a worst case scenario,” Galston said.
