The U.S. election might not be resolved on election night. Here's why
Already battered by partisan loathing, U.S. democracy to be tested by feud over mail-in voting
Imagine the following U.S. election scenario: It's the night of Nov. 3, and Donald Trump vaults into a staggering lead, the kind that normally assures re-election.
His jubilant supporters are convinced he's won a second term.
That joy, however, soon turns to white-hot rage.
An extraordinarily high number of people this year are voting by mail — and it generally takes longer to count mail-in ballots, which require separate identity checks and separate processes for disputes.
Days later, Trump's lead has vanished.
That's because city-dwellers in Philadelphia, Miami, Detroit and Milwaukee are more likely to support presumptive Democratic candidate Joe Biden, less inclined to venture out to a polling station during a pandemic and far more likely to vote by mail.
Imagine the disputes that would follow. For a glimpse of how ugly it could get, a 55-page paper from the head of the election-law program at Ohio State University lays out a series of potential legal and political feuds.
"This country would break in half," a Fox News host, Brian Kilmeade, said this week, envisioning a scenario in which Trump, a Republican, appears to have won on election night, only to be declared the loser days later.
Now stop imagining this scenario. And start bracing for it.
The United States is lumbering toward a perfect electoral storm that could test the foundations of a democracy already battered by partisan loathing.
That's why election experts are warning that the public had better prepare for a topsy-turvy post-election period following the Nov. 3 vote.
It has already begun unfolding, according to a warning this week from a Michigan state official.
A recipe for turmoil
Mailed ballots are the latest battlefield in the country's myriad political culture wars.
The same polls show Biden leading the race overall because he has an even larger edge among those who intend to vote by mail.
Add a few more ingredients to this perfect recipe for chaos.
Trump supporters have said they would not accept a Biden win based on mailed ballots, according to one poll.
They also want the winner declared immediately on election night — echoing Trump's own demands.
Must know Election results on the night of the Election, not days, months, or even years later!—@realDonaldTrump
That leads to the final variable: Trump himself.
The inimitable president, with his never-admit-failure personality, declares U.S. elections rigged even when he's not on the ballot.
He's doing more than complaining.
His campaign is also involved in lawsuits to constrain mail-in voting, and Trump himself has suggested these suits are central to his election strategy.
"My biggest [re-election] risk," is how Trump, in one interview, described losing these suits.
The strategy: disrupt and discredit
Call it a disrupt-and-discredit strategy.
His administration is disrupting mail delivery before the election, with weeks-long delays reported in Pennsylvania amid new cost-slashing measures by Louis DeJoy, the new head of the U.S. Postal Service appointed last month, who has been a donor to Trump and the Republican National Committee.
A postal union official told CBC News that most parts of the country are seeing a smaller backlog of a few days but that it's growing amid a halt to overtime for workers and other measures.
"The mail's going to keep piling up. And it's going to be a snowball effect," he said, speaking on background.
That matters because a mailed ballot that arrives late will not count in most swing states — some will accept a late envelope if it carries a postmark predating Nov. 3.
Already in this year's primaries, tens of thousands of ballots were delivered too late to count in various states.
Meanwhile, Trump's lawyers are suing Pennsylvania over its effort to speed up delivery of mailed ballots through community drop-off locations.
Months ago, early in the pandemic, Marc Elias, an election lawyer for the Democrats, predicted problems handling all of the new mailed ballots.
"We're going to have a real crisis," he told CBC News.
The nightmare scenario
New York illustrates his nightmare scenario.
Six weeks after a primary in that state, officials have yet to finish counting ballots. This would be disastrous in a presidential election, threatening a full and fair vote.
That's because each state is supposed to have certified its official result by early December so that, under the formal 18th-century rules of the U.S. Constitution, members of the electoral college can meet on Dec. 14 for the official vote for the next president.
What the U.S. Supreme Court ruled in its notorious 2000 Bush-Gore decision was that the Florida recount could not continue past then.
"That's a real deadline," said Edward Foley, director of Ohio State University's election-law program and author of different books on the electoral college and disputed elections.
His above-mentioned 55-page paper evokes scenarios so messy and complex they make the Bush-Gore recount look like a church bingo game.
Foley maps out potential legal and political battles for a vote-by-mail count involving state and federal legislators, governors, lawyers, state elections agencies and, in the most extreme scenario, the U.S. military trying to decide who should get the nuclear launch codes on the next inauguration day, Jan. 20, 2021.
Reasons for optimism
The good news is he thinks the vote counting can happen on time.
"Yes, I'm worried, but I don't want to be overly alarmist," he said. "I think there are reasons to be concerned.
"It's not that America is inevitably heading to failure — not at all. I still think [a fair vote count] is still more likely than not."
I fear Republican sabotage of the USPS, including slowing mail delivery, is a Trump strategy to make voting by mail more difficult this fall. Request your ballots and return them as early as you can. <a href="https://t.co/LZONq8EPKE">https://t.co/LZONq8EPKE</a>—@HillaryClinton
Foley said he's been heartened lately by state-level Republican officials pushing back against Trump's rhetoric and defending mailed ballots.
Another leading expert on mail-in voting, Paul Gronke, said he's not especially worried.
He said several states have proven this can be done smoothly, and he suspects New York's problems were a unique failure.
Gronke, a political scientist and director of the Early Voting Information Center, did identify places with a higher likelihood of problems with counting.
The potential trouble spots are states that delay the start of counting mail ballots, he said.
Among swing states, some allow mail-in ballots to be inspected and counted before election day, and some starting on the morning of election day.
Wisconsin is one of the states that allows election officials to start counting ballots the morning of the vote.
The Democrat who chairs the state's bipartisan elections commission said she's not worried about completing the count in a reasonable number of days.
It's her job to eventually certify the Wisconsin result.
"We'll have to work really, really, really hard," Ann Jacobs said.
"[But] I feel confident we can get that count in."
She said states can also help by making the process more transparent. For example, some intend to publish, early on, the number of uncounted mail ballots, and Jacobs said all states should do this.
What she's more concerned about is the front end of the process — with what she described as the sabotage of the postal service.
WATCH | Trump's suggestion of changing election date quickly rejected:
One political scientist who studies failing democracies said there's one step officials can take now to cool the post-election climate.
Steven Levitsky is a Harvard professor and co-author of a book How Democracies Die, which argues that the U.S. is in the midst of a decades-long democratic erosion now accentuated in the Trump era.
He said state officials need to start warning the public — immediately — not to count on full election results the night of Nov. 3.
"Say, 'There will be no election results for a week. You'll get your election result on Nov. 10 or 11,'" Levitsky said.
"State officials should dramatically dampen down expectations of a result on [election] night.... That would help to defuse a little bit of Trump's antics."
- The original version of this story listed Florida among the states that start processing mailed ballots on election day. In fact, Florida is among the states that allow processing weeks before the election.Sep 09, 2020 6:21 PM ET