Daniel Smith said, “Ultimately, in Florida, it may all come down to the three-member Canvassing Boards, who will decide whether each vote counts. This time, they won’t be staring at chads but comparing signatures and deciding if they match.”
In the days following Election Night, there is likely to be an increasing disparity between the initial poll tallies and the numbers that include mail-in votes. This is not exactly new. According to Edward B. Foley, a professor at the Ohio State University Moritz College of Law, for most of the twentieth century, the preliminary count on Election Night was about ninety-nine per cent of the total count, but, even before COVID, “a new normal developed, because of greater reliance on vote by mail.” For example, on Election Night in 2018, the Republican Martha McSally led the Democrat Kyrsten Sinema by one per cent in the Arizona Senate race. But there were still about six hundred thousand votes to be counted, a quarter of the total number, and, once they were, it was clear that Sinema had won comfortably, by about fifty-five thousand votes. This year, with more mail-in votes, a blue shift is likely to take place in nearly every state.
Voters in nine states will get their ballots mailed to them directly by default, and thirty-six states will offer no-excuse absentee voting—that is, voters will be allowed to choose to vote by mail without having to give a reason. These include two major swing states, Pennsylvania and Michigan. In the past four Presidential elections, Foley explained, Pennsylvania experienced a blue shift of about twenty thousand votes: “That was before COVID and before the state moved to no-excuse absentee voting, so that means there will be a great deal more mail-in votes this year than in the past.” (In the Pennsylvania Democratic primary, in June, which had a low turnout because the Presidential nomination had already been decided, it took more than two weeks to count the votes.)
There is nothing sinister about the fact that Democrats use mail-in voting more than Republicans do. Foley’s concern is that Trump will claim that the blue shift, if it occurs, is evidence of partisan foul play, particularly if it eliminates an apparent Election Night lead in an important state. (Some Democrats have deemed a possible Trump lead on Election Night the “red mirage.”) “If the votes keep shifting, Trump may demand that the Election Night numbers be certified, because he doesn’t trust the mail-ins,” Foley said. In 2018, after a blue shift narrowed the Election Night leads of Republican statewide candidates in Florida, Trump tweeted, “The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible—ballots massively infected. Must go with Election Night.”
The prospect of a blue shift, and Trump’s reaction to it, is one reason that Michael Bloomberg decided to spend a hundred million dollars to help Biden in Florida. “In swing states like Michigan, Pennsylvania, and Wisconsin, they count their Election Day votes first and then the mail-in votes, so it’s entirely possible that Trump will be ahead there,” Howard Wolfson, a senior political adviser to Bloomberg, told me. “Trump has no respect for decorum or tradition, so we assume that he will just claim victory at that point and argue that any ballots that come in after that point are fraudulent.” Florida, on the other hand, counts mail-in votes as they arrive, so the Election Night total may well come close to the state’s final result. Wolfson explained, “Florida is obviously very close, and it’s a state that Trump really has to win to get to two hundred and seventy electoral votes. If we can show that he lost Florida on Election Night, it makes it pretty much impossible for him to claim victory in the election. That was a huge factor in why we decided to invest in Florida.”
It took a Supreme Court ruling to conclude the Presidential race in 2000—and there is an additional set of procedures that may come into play in 2020. They have roots in an even more controversial Presidential election, which took place in 1876. That year, on the night of November 7th, it appeared that Samuel J. Tilden, the Democrat, had defeated Rutherford B. Hayes, the Republican. But the results in several Republican-dominated states had not yet been reported. The vote was especially close in Florida. Shortly before the Electoral College was to meet, in December, the Florida Canvassing Board certified electors pledged to Hayes, but the state’s attorney general certified Tilden as the winner. Louisiana and South Carolina also sent contradictory certifications to Washington. Because neither candidate commanded a clear Electoral College majority, Congress improvised a solution, establishing an electoral commission of five senators, five House members, and five Justices of the Supreme Court. A few days before Inauguration Day, 1877, the commission voted eight to seven to award the Presidency to Hayes. Republicans like Hayes had established Reconstruction in the South after the Civil War, but, as part of the deal that made him President, Hayes agreed to end Reconstruction, with disastrous implications for African-Americans.
Foley told me, “Congress knew that what happened in 1876 was a disaster, an embarrassment, and then there were two more close elections, in 1880 and 1884, so they realized they really had to do something about it.” As a result, Congress passed the Electoral Count Act of 1887, which purported to establish a procedure for resolving disputed Presidential elections. The statute was, Foley said, “a placeholder, better than nothing, which they figured would be improved over time. But Congress has never returned to the issue, and the law has never really been tested. No one really knows what it means.”
There does seem to be general agreement on one provision of the 1887 act: the “safe harbor” clause. It provides that, if a state submits its final tally in the Presidential contest by six days before the meeting of the Electoral College, that decision is “conclusive” and thus free from legal challenge. This year, the safe-harbor deadline is December 8th; the Electoral College meets in each state capitol on December 14th.
It is unclear, however, what will happen if a slow vote count puts a state in jeopardy of missing the deadline. The Court’s opinion in Bush v. Gore provides one possibility, based on Article II of the Constitution, which says that the states must appoint electors “in such Manner as the Legislature thereof may direct.” In its Bush v. Gore opinion, the Court observed that, in the early days of the Republic, the state legislatures, not the voters, selected the Presidential electors in some states. Thus, the opinion went on, “the State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.” The bland legal language obscures the magnitude of this conclusion. It means that a state legislature can simply ignore the votes cast by the state’s citizens and award its Presidential electors to the candidate of its choice. “This is the most frightening prospect of all,” Issacharoff said. “It’s a deep confrontation with the idea that we as citizens have the right to vote for President.”