Charles Zelden, professor of history and politics at Nova Southeastern University in Florida, is the author of Bush v. Gore: Exposing the Growing Crisis of American Democracy.
And so the wait begins.
With no clear winner emerging on election night, it’s going to come down to Pennsylvania and a handful of “too close to call" states to determine who is the next president of the United States.
If Americans are lucky, as the last mail-in and provisional ballots are counted, a clear victor will emerge. Should this happen, only our nerves, battered psyches, and frayed patience will pay the price of delay as we wait for a winner to be declared.
But what if the counts are close? (They are.) What if, as a result, a clear victor does not emerge quickly? (It hasn’t.) What if the courts get involved? (They will and in fact have already faced calls for action.) Expect these trends to get worse the longer the process continues.
When this happens, the costs and injuries of delay will be much more significant and long-lasting. Fights over which ballots to count, and how to count them, will undermine faith in the election’s legitimacy – and the legitimacy of the eventual winner. The democratic process itself will be put on trial. And given the polarized state of American politics and society today, half the nation will likely reject that trial’s verdict.
So, given that the vote totals are close – both within the tipping point of states and the Electoral College – what’s next? How might events play out over the coming days, even weeks?
For one, expect both sides to be screaming how unfair and illegitimate the vote counting process is (though they will differ on what seems unfair). President Donald Trump has already declared “victory” and called for the vote counting to stop. Motivated by such calls, people will make up their minds quickly who the “real” winner is – and they will protest on behalf of that winner. We may even see the sort of planned disruption of vote-counting that happened in Miami-Dade County in 2000 – the so-called Brooks Brothers riot. Violence is possible and even likely if the vote process moves slowly. Worse, the longer this PR campaign goes on, the more it will shape the attitudes of the American public on the new president’s legitimacy.
More specific to vote-counting, expect lots of litigation as both sides turn to the courts for help. The rules shaping the electoral process – who can vote, what counts as a valid vote, when must mail-in ballots be received – have been in constant flux this election cycle. New balloting rules from state legislatures, last-minute revised election procedures from state officials, and multiple (not to mention contradictory) judicial rulings have created countless ways to build legal arguments for and against the counting of different ballots. The narrow gap between candidates in the slow-counting swing states has already led Mr. Trump to file suits to stop the vote counting. Expect more come.
Perhaps the worst impact of slow-counting and a close tally is delay itself. Conflicts over the validity of individual ballots inevitably slow down the vote-counting process. Litigation over these ballots and the standards used in counting them add more delay. And for a political system, undue delay is deadly.
Every state has deadlines that must be met for the counting, recounting, and certifying of vote totals. Delay long enough and the pressure will grow on state legislatures to meet those deadlines by declaring a “failed” election, and then naming their own slate of electors (notwithstanding the vote totals). This is not some scary fantasy. It almost happened in 2000, when the Florida legislature was actually in the process of picking a slate of electors for George W. Bush (irrespective of the eventual recount results) when the Supreme Court’s Bush v. Gore ruling ended the recounts and the election. Should this happen in 2020, the ramifications and reverberations of such a choice could very well tear the American polity apart.
Of course, all of this is still in the realm of the hypothetical. Slow-counting votes do not guarantee protests, never-ending litigation, or legislative co-option of the choice of electors. For any of this to become real, the votes both within states and in the Electoral College would have to remain razor-thin. For now, the best option is to be patient, let the vote counting process work itself out, and pray for a clear victor to emerge.
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