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Washington Post: If we don’t dispel the falsehood of an election ‘delay’ now, we risk chaos in November

By The Washington PostAugust 19, 2020October 23rd, 2024No Comments

From the Desk of Tim Wirth (U.S. Senate, Colorado, Ret.)

Re: PATIENCE. Following November 3, we can anticipate a long wait for election results as the anticipated surge of absentee ballots are counted. This period provides opportunities for the President to claim fraud, challenge the electors in various states, and raise the already white hot partisanship of this election cycle. This again reminds each of us to get an absentee ballot if possible, to vote early and verify that your vote has been counted, and then to counsel PATIENCE for all as we await the counting of the Electoral  College in mid-December. 

If we don’t dispel the falsehood of an election ‘delay’ now, we risk chaos in November

August 19, 2020 | Joanne Lipman and Edward B. Foley | The Washington Post

President Trump is ramping up his attacks on mail-in voting by insisting election results “must” be known on election night. “No more big election night answers?” he tweeted last month. “Ridiculous! Just a formula for RIGGING an Election . . .”

The news media have pushed back on his baseless claims of fraud. But they agree with him on one point: There is likely to be a “delay” in election results because of a surge in mail-in votes.

But that’s wrong. If results aren’t known on election night, that doesn’t mean there’s a delay. The fact is, there are never official results on election night. There never have been. …

From the Desk of Tim Wirth (U.S. Senate, Colorado, Ret.)  

Re: PATIENCE. Following November 3, we can anticipate a long wait for election results as the anticipated surge of absentee ballots are counted. This period provides opportunities for the President to claim fraud, challenge the electors in various states, and raise the already white hot partisanship of this election cycle. This again reminds each of us to get an absentee ballot if possible, to vote early and verify that your vote has been counted, and then to counsel PATIENCE for all as we await the counting of the Electoral  College in mid-December. 

By Joanne Lipman and Edward B. Foley, August 19, 2020

Joanne Lipman is a former editor in chief of USA Today. Edward B. Foley directs the election law program at Ohio State University’s Moritz College of Law, where he teaches constitutional law.

President Trump is ramping up his attacks on mail-in voting by insisting election results “must” be known on election night. “No more big election night answers?” he tweeted last month. “Ridiculous! Just a formula for RIGGING an Election . . .”

The news media have pushed back on his baseless claims of fraud. But they agree with him on one point: There is likely to be a “delay” in election results because of a surge in mail-in votes.

But that’s wrong. If results aren’t known on election night, that doesn’t mean there’s a delay. The fact is, there are never official results on election night. There never have been.

Predictions of a delay rest on a misunderstanding of the vote-counting process — a misunderstanding that is both dangerous and hugely consequential. If election-night results are considered the norm, and what happens this year is described as a “delay,” it will be easy to paint the result as problematic — and for Trump to continue to spread suspicions about the entire process.

Concerns about a supposed delay stem from a coronavirus-fueled interest in absentee and mail-in ballots. In a July survey of more than 19,000 Americans, 41 percent of those who plan to vote said they were “very likely” to vote by mail this year, and another 23 percent said they would be “somewhat likely” to do so. That compares with 21 percent who voted by mail in 2016, “which itself was a historic high,” the survey, conducted by a consortium of universities, noted. Counting those ballots could potentially take days or weeks, which means projecting a winner on election night may not be possible.

Yet even if counting takes several weeks, that wouldn’t constitute a delay — because by law, election results aren’t official until more than a month after the election. The 12th Amendment and the accompanying Electoral Count Act of 1887 give states five weeks — this year, until Dec. 8 — to count their popular votes. That tally determines each state’s presidential electors, who cast their state’s votes six days later, on Dec. 14. Only if states miss that December deadline would election results be genuinely late.

That means all of us — politicians, the media, pundits and voters in general — need to reorient our thinking. The election is officially decided in December, not in November. There is nothing pernicious, or even unusual, about this. The only problem is one of perception.

The misperception isn’t surprising. We’ve come to expect that the media will announce the winner on election night. After all, that’s been the case for more than six decades. News outlets often report the results calculated by research groups or the Associated Press, which collect returns from individual precincts and add them up.

But the media results are projections based on preliminary returns rather than a certified final number. In previous years, that has been a distinction without a difference, since there was virtually no daylight between news media projections and actual results. One notable exception was the 2000 presidential election, when confusion over the Florida vote ended with the Supreme Court declaring George W. Bush the winner over Al Gore.

This year, results are likely to be more complicated. The race could be too close to call. Or the candidate who is ahead on Tuesday night may end up losing once absentee and provisional votes are counted. Or an election lead might actually widen. Since 2000, Democrats have done better as later ballots are counted — the “blue shift” first identified in a 2013 paper by one of us, Edward Foley — which could significantly impact results. Hypothetically, Trump could be winning on election night by a small margin in one or more swing states and claim he has enough electoral college votes to declare victory. Yet after all votes are counted, Joe Biden could be the actual winner. Trump has been pushing the false narrative that any change after election night is fraudulent. That is unequivocally not the case.

Certainly, there are real obstacles this year. In New York City, results in two congressional primary races took six weeks to confirm. The Post Office has been hampered by Trump administration budget cuts, leading to worries that ballots won’t arrive in time. In-person voting could be problematic because of the pandemic, especially in minority communities where polling locations have been reduced.

These are all legitimate concerns. But the preemptive claim of a “delay” in election results isn’t one of them. If we don’t dispel the falsehood now, we risk unnecessary chaos in November.

It’s essential for us to get this right. If we do not, we give ammunition to those who would undermine democracy by willfully getting it wrong.