You Hold Your Election with the System You Have

America no longer has an Election Day, really, or even an election week. In some states, voting began in mid-September. In others, a ballot received several days late, via mail, with no postmark, may be counted. Tabulating the votes takes longer still—in 2020, five states had not yet been called by Wednesday evening, and the call of Pennsylvania securing Joe Biden his 270th electoral vote came Friday, 87 hours after polls had closed.

The wisdom of this system is a question for another day. It is the one we have, and the one that will determine who takes the oath of office on January 20, 2025. With that in mind, your one thing to read this week is Ben Ginsberg’s New York Times essay, “I’ve Been Through a Lot of Election Nights. Here’s How Nov. 5 May Go.”

Ginsberg is a legendary Republican election lawyer who spent decades advising the highest-profile campaigns. He played a central role in the Florida recount in 2000 and advised the Swift Boat Veterans for Truth in 2004. He co-chaired the bipartisan 2013 Presidential Commission on Election Administration. In other words, he knows what he’s talking about, and he’s not averse to the bare-knuckled legal brawling inevitable to certain election circumstances. So it’s worth listening when he says to “get ready for a long election night—or nights.”

Among the seven swing states, only Georgia, Michigan, and North Carolina count their votes quickly and are likely to deliver a prompt result in a close race. Wins in all three for Harris would almost certainly mean she’s headed above the 270 electoral vote threshold for victory. Wins in all three for Trump would get him comfortably to 266 and portend likely victory in some of the other swing states as well. (To play around with various scenarios, I recommend 270toWin.)

But, without a clean and clear sweep of the quick counters, there’s a good chance we would be headed for a repeat of 2020’s timeline—or worse. “In fact,” explains Ginsberg:

Thanks to a combination of new state laws and the inaction of legislators who could have made vote-counting more efficient — but didn’t — it may take even longer to declare a winner than it did in 2020, when news organizations called the race four days after Election Day. Since 2020, Arizona, Nevada, Pennsylvania and Wisconsin have either added rules that could slow down their vote counts, or allowed existing rules that contributed to long tabulating times in 2020 to remain in place.

And then there is ballot “curing,” verification of “provisional” ballots, the prospect of time-consuming recounts, and legal challenges to any and all steps along the way.

A final complication, political rather than legal, but no less important to the orderly completion of the process, is that in these messiest of states there are different types of ballots being counted at different times—the early returns that start showing up on television screens when the polls close, and even the up-to-date counts as people resignedly fall asleep in the wee hours of the morning, are not random, representative, and thus predictive samples of the overall vote. In recent elections, notes Ginsberg, “because Democrats have historically made heavier use of mail ballots, Republicans often appear to do better on Election Day, whereas Democrats can appear to surge in the days after the election as mail ballots are tabulated. Still unclear is whether a Republican push this year to have their voters cast ballots early will change this pattern.”

Note that this uncertainty is a double-edged sword. Statistical models are only as good as their inputs and assumptions. With the short history of widespread early and mail-in voting, its track record rather confounded by the worldwide pandemic last time around, and the messaging and strategy of the political parties itself in flux on the matter, projections of “whose ballots are still out,” and thus how much margins may shift, are unreliable. No one should take a razor-thin margin in Pennsylvania on Wednesday morning as decisive and insist that continued counting will not legitimately change the outcome; it might. Nor should anyone look at that same picture and explain confidently that continued counting will legitimately change the outcome; it might not.

We would all enjoy the narrative convenience of some obvious culprit deserving the blame for this state of affairs. But what we have, per Ginsberg, is “a patchwork of new developments and old laws — a few of which are encouraging, but many of which are troubling.” As declared at the outset of the U.S. Constitution’s Article II, the process for choosing electors is that “each State shall appoint, in such Manner as the Legislature thereof may direct.” The punchline from Ginsberg:  

So don’t expect to know the winner of a close presidential contest on election night — and understand that this is because of policy choices made by each state. Delays themselves are not evidence of a conspiracy. They should not breed mistrust. If either candidate jumps the gun and declares victory before the votes are counted, dismiss it as political posturing and know that each state’s rules will decide the outcome.

You hold an election with the system you have, and this is ours. Now it is up to the politicians, the pundits, and the people to conduct themselves within that process in a way that does credit to the nation.