Category Archives: 2020 General Election

Where Things Stand

By tmess2 | Published November 15, 2020

In part because of one sore loser, this year’s election seems to be the one that will not end.  And that means that almost any post based on current information is no longer accurate several days later.  As noted in previous posts, there are three big questions:  1) when are absentee ballots due; 2) when will the vote be certified; and 3) what states might be subject to recounts.  There is also the never-ending litigation being filed by the Trump campaign.

At the present time, California is probably the biggest state in which we are still waiting for late absentee ballots with a deadline of Friday.  At the time that I am writing this post, the margin in the Twenty-Fifth District is less than 100 votes; so late arriving ballots could be a key.  In addition, a recount is a real possibility.

The other big state in which there remains a significant number of ballots to be counted is New York.  At the present time, Democrats have apparently lost the Eleventh District (Staten Island).  There are three Democratic districts that have not been called, but Democrats now lead in two of the three.  There are also two Republican districts that have not been called, but the Republicans have significant leads in both.  Whether the remaining votes will actually swing the districts is unclear. Continue Reading...

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What Comes Next?

By tmess2 | Published November 11, 2020

We are entering uncharted territory in the U.S. Presidential election.  Moscow Mitch is technically correct that the President has the right to avail himself of all legal remedies related to challenging the election results.  But that’s not saying much.  Technically, I have the right to file an election contest in my state challenging the results of several issues that were on the ballot last Tuesday.   But I have no valid legal claims (or at least no evidence supporting any of those claim), and I would be facing sanctions for filing a frivolous case if I tried.  Apparently, the president of the United States is exempt from the rules requiring a good faith basis for filing a case.

The closest that we have been to this type of obstruction was 2000 in Florida.  Of course, in 2000, the election came down to one state, and that state was close enough to trigger an automatic recount.  And where things went off the rails was that the parties could not agree on the proper way to conduct that recount.  As a result, it is debatable whether there ever was a proper recount in Florida.

At least until Trump surrenders, there are two different lines by which things will progress.  The first involves the Presidential Transition Act.  Under the provisions of that act, there is a transition process which includes office space, the ability to employ staff, and access to government materials for the president-elect and vice-president elect.  The key part of the act for the current situation is the triggering language which relies upon the determination of the Administrator of the General Services Administration.  Under that language, those rights trigger upon the determination of the Administrator of the “apparent successful candidate” in the election.  The big problem with the act is that it does not define how the Administrator determines who is the “apparent successful candidate.”  And, in the past, this provision has not been an issue.  In the first fourteen elections held under the Act, the identity of the apparent successful candidate has been clear within forty-eight hours of the election in thirteen elections.   The only exception, as noted above, was 2000 in which it was clear that there was no apparent winner until Florida could complete its recount.  If, as appears to be the case, President Trump has made clear that the Administrator of the GSA should not recognize apparent President-elect Biden as the apparent President-elect, then this dispute may require a petition for writ of mandamus.  (A writ of mandamus compels an official to comply with a ministerial duty.)  The big issue in such a case would be the proper standard for the exercise of the duty and whether that standard is clear enough to give rise to a ministerial duty in this case.  Of course, the risk is that a court might decline to issue the writ because the law lacks any precise standard.   The Biden Transition Team will have to balance off the risk of a bad result in a case against the reality that President Trump and the Administrator of the GSA seem intent on ignoring both the language and the spirit of the Presidential Transition Act. Continue Reading...

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A recount primer

By tmess2 | Published November 6, 2020

We are now moving into the universe where aside from spinning fictional conspiracy theory, Donald Trump is, for all practical purposes, down to recounts to keep his slim hopes of avoiding an orange jump suit alive.

As with everything else about this election that we have talked about over the past three weeks, the basic rules for recounts are set by state law.  So looking at the states in which Trump is most likely to ask for a recount, here are the rules.

Arizona — In Arizona, the margin must be less than 0.1%.   Any such recount is automatic, and a candidate is not able to request a recount.  Assuming a final vote total of slightly under 4 million votes, the margin would have to slip under 4,000 to have a recount.  Apparently, in Arizona, the recount is done by rerunning the ballots through counting machines. Continue Reading...

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Election Night Preview — Part 7 (Referendums)

By tmess2 | Published November 2, 2020

The first six posts in this series have focused mostly on federal elections with a handful of Governor’s races.  Of course, there are also state legislative races, some local (mostly county) races, and referendums.

While I am sure that somebody has a complete list of every local bond issue or city charter issue, this post will focus on the state-wide issues.  More specifically, this post will focus primarily on the changes that will make structural changes to the political system.  It’s not that votes on legalization of marijuana or changes to the criminal justice system are unimportant, it’s just that many of these referendums are the results of the failure of the elected politicians to address these issues.  and it’s the structural changes that may (or may not) make legislatures more responsive to these types of issues.

Several states are considering changes to the structure of elections  In Massachusetts, voters will have the option of following in Maine’s footsteps by adopting ranked-choice voting for most state and federal elections (except for President). Continue Reading...

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Election Night Preview — Part 6 (Aftermath)

By tmess2 | Published November 1, 2020

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. Continue Reading...

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Election Night Preview — Part 5 (11 PM EST to Sunrise)

By tmess2 | Published October 31, 2020

Recent elections have been so close that between the inability to call states and the large number of electoral votes on the West Coast, the news media has been unable to call the presidential election before 11 PM EST.

Before going into the states that will be closing at 11 p.m. or later, some words about the process of projecting a winner.  Each network has a team that makes the decision on when to project.   For all intents and purposes, this team is in a sealed room with no knowledge about what the talking heads or saying or whether other networks have made a projection.   There are lots of data that these teams look at: 1) election day exit polls; 2) early vote exit polls; 3) polls of those who voted by mail; 4) the reported early vote; 4) how many mail-in ballots remain to be counted; 5) “key” precincts (key in the sense that the team knows the typical vote in those precincts and can judge the swing in those precincts); 6) which precincts (and counties) have not yet reported.  Basically, while the margin of error in exit polls makes it difficult to call a close (52-48) race based on exit polls, you can call a landslide (60-40) based on exit polls.  For those in which exit polls show a close race, you need enough votes to make a call.  And if the early results are consistent with a close race, you can’t make a call into the outstanding vote is too small to realistically swing the race (i.e. the remaining precincts are in areas that favor candidate X who is ahead or candidate Y would need 95% of the remaining vote and has been getting 80% of the vote in similar precincts).  One fact that could hinder making projections and lead to a state being uncalled on election night is a large number of uncounted absentee ballots (due to a state not being able to count before election day) or a large number of absentee ballots not yet returned in states that have a post-election day deadline for receipt of absentee ballots if postmarked by election day.

At 11 p.m., we will have partial closings in the remaining parts of Idaho, North Dakota, and Oregon.  Of these three states, most of the voters Idaho and North Dakota are in the part that closed at 10 p.m. EST.  However, in Oregon, most of the voters live in the Pacific time zone which will close at 11 p.m.  The entirety of the state also closes for California and Washington,  At midnight, the polls close in part of Alaska and in all of Hawaii.  Finally at 1:00 a.m., polls close in the remainder of Alaska. Continue Reading...

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Election Night Preview — Part 4 (10 PM to 11 PM EST)

By tmess2 | Published October 30, 2020

It is very highly unlikely that we will have a projected winner when the clock strikes 10 on the east coast.  Mathematically, it’s possible as by 10:01 p.m. polls will officially be closed in states with 450 electoral votes.  But, practically speaking, it would take all of the toss-up states that have closed before then to have enough votes counted that the networks felt comfortable projecting them, and they would all have to go the same way.  Even in years like 2008, enough of the Democratic vote is in states in which polls close at 10 or 11 p.m. EST, that it would take flipping states like Texas and Georgia to have a shot at reaching 270 before 11 p.m.

Looking at 2016, the first battleground state — Ohio — was called at 10:36 p.m.  Depending on how things play out with mail-in ballots and early voting, some of the battleground states might get called faster, but others are likely to be called much later.

In this hour, we will have partial closures in Idaho, North Dakota, and Oregon.  In North Dakota and Idaho, the majority of the population is in the part of the state that closes.  As such, we will get a good idea about the state from the precincts that have closed.  On the other hand, only a tiny part of Oregon will close at 10 p.m. and all of the key races will have to wait another hour.   For North Dakota and Idaho, none of the races are expected to be particularly close.  So those contests should be called shortly after 11. Continue Reading...

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Election Night Preview — Part 3 (9 PM to 10 PM EST)

By tmess2 | Published October 29, 2020

As we noted in the previous two posts, a key part of the night will be how fast votes are counted and, in particular, what share of early and mail-in votes are released on election night and how many mail-in votes are potentially still in the mail and eligible to be counted.   There is also the issue of how long the lines were — especially in urban precincts — which could delay the count of votes cast on election day.  At this point in time, we should have projections from Kentucky and Indiana and the bluer and redder states from the 7 PM EST hour.  The question during this hour is whether we start getting projections from some of the swingier states with 7 PM closing times like Florida and Georgia have been called, and, if so, in which direction.

During this hour, nine states will close across the entire state and the remainder of the polls will close in Kansas, Michigan, South Dakota, and Texas.  South Dakota is unlikely to be close for any race, and the majority of Kansas and Texas close at 8 PM  EST.  What to look for in Michigan, Texas, and Kansas is addressed in Part Two.  Besides these partial closures, we have full closures in Arizona, Colorado, Louisiana, Minnesota, Nebraska, New Mexico, and Wyoming.

Louisiana is a weird state in that there are no party primaries.  Everybody runs on the general election ballot, but it takes a majority to be elected.  While none of the races are expected to flip, there is always the chance that the sheer number of candidates on the ballot could result in a run-off.  Of course, some of these run-offs will feature two Republicans (or, in the one district that the Democrats hold, two Democrats).  Wyoming also features no close contests and should be an early call across the board. Continue Reading...

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Election Night Preview — Part 2 (8 PM to 9 PM EST)

By tmess2 | Published October 28, 2020

As noted in the previous post, by 8 p.m. Eastern Standard Time, we should have a significant amount of precincts being reported in the two earliest states (Kentucky and Indiana) and should be starting to get some counties reporting votes in Florida, Georgia, South Carolina, Virginia, and Vermont.  During this hour, the counts in those states should be increasing.  By 9 p.m., we should be seeing either some projection in those states or an indication that the states are too close too call.  We may also be getting an indication in some of those states of how many absentee votes might remain to be counted (which could determine whether it will be possible to make any projection in those states on election night).

While it would be nice if we could get calls in a state like Virginia early in this hour, the bigger question as the hour goes will be the types of swings that we are seeing in these states.   Virginia in 2016 was a leading indicator as we were just not getting strong results compared to 2012.  So as this hour goes along and the networks start looking at the maps of the state, the key thing to pay attention to is how the numbers are comparing to 2016.  Even if the networks aren’t comfortable in calling a state yet, if the results are showing that Trump is underperforming in red parts of a state (i.e. rural counties) and Biden is overperforming in the suburbs, then that is a good sign for the rest of the evening as Trump only one by the slimmest of margins in 2016 and any erosion in his support could prove fatal.

This hour has the most states close.  You have partial closures in Florida (the rest of the state closed an hour earlier), Kansas, Michigan, South Dakota, and Texas.  While a significant part of South Dakota will close an hour later, the polls close for most of the population in Kansas, Michigan, and Texas at 8 p.m. Eastern.  In addition to these states, polls for the entire state close at 8 p.m. Eastern in Alabama, Connecticut, Delaware, D.C., Illinois, Maine, Mississippi, Missouri, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Rhode Island, and Tennessee. Continue Reading...

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Timing of Vote Counts

By tmess2 | Published October 21, 2020

Heading into the election, we are facing only partially charted territory.  This year, based on the votes so far, several states are going to have an unusually high number of mail-in ballots, especially in states that have somewhat restrictive rules on mail-in absentee ballots.  As voters in state with a high percentage of late arriving mail-in absentee ballots know, when 35% of the vote remains to be counted after election day, it is not unusual to see tight races go back and forth as more ballots are counted.  So here is what you need to know about the rules for processing ballots.

Generally speaking, for this purpose, there are four different ways to vote in the U.S.  First, there is the traditional in-person vote on election day.  Second, there is early in-person voting at vote centers.  Third, there is the traditional mail-in absentee ballot.   Finally, there are provisional votes.

For counting purposes, early in-person voting will generally be released on election night.  In some states, the early voting numbers are released shortly after the polls close.  For the in-person election day vote, that count tends to take a little bit longer.  Since everyone in line at poll closing time votes, precincts actually close a little bit later than the official time.  And, in many states, the ballots are then taken to a counting center.  So it may take several hours to get the “election day” vote. Continue Reading...

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