This election may go down in history for being very, very bizarre. Or it may lead to some necessary changes in state election law. If Tuesday is a good night for the Democrats and Joe Biden, there will not be much to fight about starting Wednesday. Likewise, a lot depends on what is still outstanding and remaining to be counted. As we have noted previously, some states allow absentee ballots to be received after election day and some will not start counting the absentee ballots that have been received until election day. The folks at 538 have done a summary of what states are likely to have almost all of the ballots counted by the end of election night and what states will still have many ballots to count.
Current polling suggests that Democrats are more likely to vote by mail and Republicans to vote in person. As such, there are likely to be dramatic shifts in the vote as different types of ballots are counted. This shift will matter in some of the states that will count almost all of their votes on election night, but it will matter more in the states that will be counting a significant number of votes after election night.
What happens after election night depends on where things stand at the end of the evening. If Trump can hold some of his marginal states (Florida, Georgia, Iowa, and North Carolina), the race will come down to some late counting states. On the other hand, if Trump is trailing in these states (and Arizona and Ohio) at the end of election day, the race is over.
Assuming that the race is still up in the air on Wednesday, then expect the legal equivalent of hand-to-hand combat in every state that remains to be counted. A lot of what happens will come down to two things. First, how well the counties have staffed their counting facilities? If the counties have done a good job, a large segment of the count will be done by election day and enough of the remaining count will be done by Wednesday. If Biden has comfortable leads in Michigan, Pennsylvania, and Wisconsin by the end of Wednesday, the odds of the fight continuing will drastically diminish. Second, how many potential absentee ballots are outstanding after Tuesday. Every state will have some idea of how many absentee ballots were mailed to voters and how many have been returned before Tuesday. If we are looking at a maximum of 10-20,000 ballots potentially in the mail that might be received by election authorities in the days after November 3, there will not be much to fight about in a given state. If we are looking at 500,000 plus ballots and Trump is narrowly leading, Trump will fight and fight hard to interfere with the count.
A lot of the aftermath will depend on how quickly the count is completed (or practically completed). We know that some states will take almost two weeks (or longer to complete the count), but the issue is how much remains to be counted and how clear the early numbers are. For example, we know that the Democratic lead is likely to grow in California as the numbers become more complete, but it should be clear by Wednesday morning that Biden ahs clearly won California; so California will not be the center of any fight. And we may have enough of the results in Michigan and Wisconsin by Thursday night to project those states. Pennsylvania may take a little bit longer. The ultimate issue for these states are whether the race is close enough for any shenanigans to matter and if the Trump attorneys can slow down the count enough to really start disputing the election.
Simply put, even pro-Trump judges and justices will not risk their reputation and careers to put their thumbs on the scale if Biden has clearly won. If the election is close enough that enforcing state law (postmark requirements, signature matching) could exclude a significant number of mail-in ballots allowing Trump to stay ahead in the final count, then you could have some judges acting to protect Trump. My expectation is that any judicial action will be limited to decisions that are facially valid. In other words, while the rulings may be partisan in the sense of excluding ballots likely to favor ballot, they will be based on a colorable interpretation of existing law.
In the end, there are four potential scenarios for the aftermath of the election.
Scenario Number 1 — Biden is ahead in states with more than 270 electoral votes (and has been projected as the winner in enough states) on Wednesday morning. In this scenario, you may have fights in some states with close Senate races, but no national battle. There may some pro-Trump disturbances, but the leadership of both parties (and judges) will recognize Biden as the winner.
Scenario Number 2 — The vote is still up in the air on Wednesday morning, but as additional votes are counted on Wednesday, Thursday, and Friday, it becomes clear that Biden has won. While you may have some initial attempts to interfere with the counts, they will quickly be withdrawn before any action is taken or before they can make a difference.
Scenario Number 3 — The race is recount close in one or more states after the pre-election day mail-in ballots are counted and the difference will be ballots received after election day. This scenario is the potential for chaos scenario. I do not think that we will be in this situation, but it is possible. In this scenario, there will be time for judges to be asked to make and to make rulings that could exclude a significant number of ballots and for election contests after the official certification date are a probability. Exactly what happens depends on where the dispute arises and how quickly the courts act. It is not hard for a judge to delay making a decision for a couple of hours to get responses and replies and to do some checking on the legal claims made by the parties. And two or three days of delay working your way through state courts could result in enough additional results to change the state of the race.
Scenario Number 4 — This scenario is the flip of Scenario 1 and 2 in that it become clear by Thursday that somehow Trump has pulled out the race. I really do not think that this situation is very likely, but the polls could be very, very wrong (more so than in 2016). Like in Scenario 1 and 2, there may be some protests against Trump, but there should be nothing that will impact the outcome of the race (or any serious attempt to dispute the results).
As noted at the start, this year has been unusual. It will take time to see if the move toward mail-in votes is just a reaction to COVID-19 or if universal mail-in vote will become the new normal. If the latter, there are some states that will need to alter their election procedures to adjust. Regardless of the final count, there will certainly be some states that will have to explain after this election why they took longer to count than other states that had similar numbers of mail-in ballots. I am cautiously optimistic that, while we might not know who will win when we go to sleep Tuesday night, there will be an obvious winner by noon on Wednesday at least in terms of the President and the White House. Especially because of the weird situations in Maine and Georgia, it may take longer for us to know who will control the Senate and whether Democrats will have any votes to spare in the Senate (which might matter on certain issues like abolishing the filibuster).
