While election officials across the country try to prepare Americans for the chance of a prolonged vote-counting process this year, President Donald Trump and his allies have drawn a line in the sand and say they want to see a winner declared on election night.
As a result, Trump and his allies are setting unrealistic expectations, and undermining warnings from bipartisan state and local election officials and experts that a slower vote-count doesn’t always indicate a problem.
Relying on an inaccurate and misleading interpretation of how US elections are conducted, White House press secretary Kayleigh McEnany said last Wednesday that the Trump administration wants to see a presidential winner projected on election night this November.
“What we want election night to look like is a system that’s fair, a situation where we know who the President of the United States is on election night. That’s how the system is supposed to work. And that’s ultimately what we’re looking for and what we’re hoping for,” McEnany said in a Fox News interview, where she criticized Democrats for expanding access to mail-in voting.
Facts First: McEnany is completely wrong when she says “the system is supposed to” produce a clear winner on election night. That’s a modern tradition in US politics, and it’s what many expect when watching the results. But it’s not required by law and it’s not what the system is designed to do.
In recent months, Trump has repeatedly questioned the legitimacy of the election, refused to say if he’ll accept the results and spread false information and conspiracy theories about mail-in voting. He has a long history of rejecting election results and levying baseless accusations of widespread fraud when he sees election results that he doesn’t like.
He and his team have also attempted to suggest that any delay in the announcement of results is somehow improper, and that, despite Covid, 2020 Election Night should look and feel like any other election — even though the pandemic has drastically transformed how people vote and how states count those ballots. McEnany’s implication that a clear winner be determined on Election Night is rules- or law-based is part of that effort, one that experts say is not grounded in any reality.
“There is no legal requirement that states announce the winner of their popular vote on election night,” said Franita Tolson, a CNN contributor and law professor at the University of Southern California, who pointed out that the legal framework to formally select the next president largely revolves around Electoral College proceedings that take place in December and January.
Unlike other democracies, there is no national authority in the US that handles election results. That informational void is filled by news organizations, which report vote-counts from the states and project winners based on results, exit polling and mathematical forecasts. When one candidate is projected to win 270 electoral votes, they are anointed as the projected winner of the election.
McEnany is correct to suggest that there might not be a winner on Election Night this year — but there is nothing inherently wrong about that, and it is not indicative of fraud. Results that are publicly reported on Election Night are always “unofficial” and “preliminary” results. The official, final count is typically certified weeks later, after outstanding absentee and provisional ballots are tallied.
The 2000 election was stuck in limbo for 36 days until the Supreme Court shut down recounts in Florida, handing a victory to then-Texas Gov. George W. Bush. And in the 2004 race, Democratic nominee John Kerry withheld his concession until the day after, waiting on results from Ohio.
The vote tallies always change after election night as absentee ballots and provisional ballots get counted. The post-election shifts will be larger this year, for a few reasons: The Covid-19 pandemic is creating unprecedented interest in mail-in voting, and Democrats are favoring that method more than Republicans, according to recent polling from CNN and other organizations.
“Many more people will be voting by mail this election because of the pandemic, and those ballots take longer to process because of anti-fraud provisions in place,” said Rick Hasen, a CNN contributor and leading expert on elections at the University of California, Irvine. “The way the system is supposed to work is that it takes weeks to get an official count in most states.”
In the Fox News interview, McEnany also wrongly implied that states with heavy mail-in voting can’t report results quickly. That is true in some cases, but it’s not accurate across the board. For instance, Colorado conducted a nearly all-mail election in 2016, and the Associated Press projected Democratic nominee Hillary Clinton as the winner within hours of the polls closing.
But not all states are as fast as Colorado. The influx of mail-in ballots has a real chance of slowing things down in states like Pennsylvania and Michigan that don’t have a long history of processing a lot of mail-in ballots This problem crept up earlier this year in New York and Kentucky, where it took weeks for the dust to settle in some closely watched primaries.
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