This year, Election Day may stretch into Election Week. Or Election Month.
In 2000, the U.S. Supreme Court didn’t declare George W. Bush the winner of the presidential election until five weeks after Election Day. It could also take days or weeks until we know whether President Donald Trump or former Vice President Joe Biden will take the oath of office in January.
The reason? An unprecedented number of mail-in ballots, hotly contested swing states, a possible record turnout and the threat of post-election lawsuits means it may take a while until all the votes are counted.
“The reality is anything could happen. We could sit here spending all our time talking about Michigan and Pennsylvania and for some reason it comes down to six electoral votes in Nevada. Absolutely anything is possible," said Sylvia Albert, director of voting and elections for Common Cause.
“The toughest part is that there are so many different variables that are all new,” said Matthew Hale, a political science professor at Seton Hall University. “It’s like trying to nail Jell-O to a wall.”
When’s the earliest we could know the results of the presidential election?
Despite the unusual nature of this election, it’s still possible we could actually find out the winner of the presidential contest on the night of the election, experts said. It will all depend on the timing of the vote counts in individual states that may tip the balance towards one candidate or another.
Some of the most contested states, including Florida, Arizona, North Carolina, Minnesota, Wisconsin and Nevada, don’t have to wait until Election Day to count their absentee ballots.
If any of them switches sides from where they landed in 2016 — blue to red, or vice versa — it will be that much tougher for the other candidate to win, experts said.
Take Florida, for example. If Joe Biden is declared the winner in the Sunshine State, Nate Silver’s FiveThirtyEight gives him a 99% chance of becoming the next president. Likewise, if Minnesota flips to Trump, his chances of winning a second term jump to 74%.
“It’s completely possible we could know by 11 or 12 on Election Night if one candidate gets enough states to get to 270 electoral votes,” said Joe Lenski, vice president of Edison Research, a Somerville-based polling research firm that will conduct the exit polls for a consortium of television networks.
“It’s all going to depend on the combination of which states are close and which get a candidate to 270,” he said.
Even with all the unknowns and new procedures, we will probably get the “majority” of results during the evening, Lenski said.
But if the election is close and depends on the results of a state that counts its ballots late, like Pennsylvania, the winner may not be known for a while.
“If it is razor-thin in a state key to the Electoral College decision, there could be recounts and lawsuits,” said Rick Hasen, a professor of law and political science at the University of California, Irvine, and author of a blog on election law. “That’s unlikely but possible.”
How will the races be called?
Usually, most races are called on the night of the election, including those in New Jersey.
The Associated Press said it may take longer this time around because of the large increase in absentee and early voting.
ABC, CBS, NBC and CNN have a consortium called the National Election Pool. They all use the same exit poll data from Edison Research, but each network has its own “decision desk.” That’s why one network may project a race sooner than its competitors.
AP used to be part of that group but now conducts its own survey in conjunction with NORC at the University of Chicago.
Lenski said his consortium already is interviewing voters at more than 700 polling places, including early voting locations, and is making phone calls to reach those who voted by mail.
“We are also collecting the vote count, which entails having thousands of reporters at county vote locations and we have data feeds with more of the states out there,” he said. “There are many sources for that data.”
Because of the pandemic, poll takers will operate differently.
“We have implemented testing and safety procedures in the COVID universe,” he said. “Instead of handing a questionnaire to a voter, it’s on a table and there is social distancing.”
Lenski said the networks will wait longer to make their projections.
“This year we want to be more cautious and patient than before,” he said. “We don’t make any calls until our models are 99.5% complete.”
One reason for that is because more Democrats are likely to cast ballots early while Republicans are more likely to go to the polls in person, he said.
“The ones that count the mail-ins first, we expect those to look good for Biden, but other states will only report in-person ballots first, and those will go towards Trump," he said. "It adds a level of complication.”
What will we know in New Jersey on Election Day?
New Jersey election officials have received more than 3 million mail-in ballots as of Thursday. That’s almost half of the 6 million mail-in ballots sent out to active registered voters, and 76% of the total 2016 vote count.
How quickly those ballots will be counted will depend on voter behavior, election officials said.
“The more people who cast the ballot that was mailed to them, the more likely we are to have completed results sooner,” said Alicia D’Alessandro, spokeswoman for the secretary of state. “The more people who vote in person, the longer the ballot counting process will extend beyond Election Day.”
Because of a new law, the counties were able to start counting the mail in ballots 10 days before Election Day, helping to speed up the process.
If a large number of voters turn out in person, the count will take longer because the paper provisional ballots used at polling sites take more time to tally. Only people with disabilities will be permitted to use a machine.
Election officials by law must count all the mail-in ballots first, and that can’t be completed until Nov. 10 at 8 p.m. at the earliest, the deadline for properly postmarked ballots to be accepted by election officials.
Once the mail-ins are all counted, they can start on the paper provisional ballots, which have to be signature-verified and cross-checked to make sure the voter also didn’t cast a ballot by mail.
And voters will have until Nov. 18 to fix signature problems with their mail-in ballots, possibly extending the count.
When will we know the winners in N.J.?
County election officials have already started counting mail-in ballots. Once the polls close at 8 p.m. Tuesday, many counties will start to post their incomplete results, though they are not required to do so.
When those numbers start to come in, analysts will look at how many ballots have been counted and how many are outstanding. The number of uncounted ballots will determine how easy it will be to call races or ballot questions.
“If a candidate is leading by more than the margin of outstanding ballots, presumably that race can be called,” D’Alessandro said. “If there are still more outstanding ballots than the margin of votes between two candidates, then it will take as long as it takes to count them and get a result for the election.”
For example, she said, let’s say six million ballots were sent out and four million mail-in ballots came in by Election Day. That leaves two million possible outstanding ballots, although history tells us not everyone eligible will vote.
In most cases, we won’t know how many of those ballots were cast and not yet counted, how many voters came in person or how many voters just didn’t vote, making it harder to project winners based on those preliminary margins on Election Day.
If a candidate or a ballot issue is winning by a wide margin, those races would most likely be called earlier than others. For example, we may know the winner of the marijuana referendum earlier than the we know the winner of a hotly contested congressional district or the presidential election.
Municipal races, such as local school boards or mayors, would work the same way, with everyone watching the vote margins within a county. Even before those races are officially called, a candidate or political party official could claim victory.
Election officials, though, will continue their tallies until every vote is counted.
On Nov. 23, the counties will give their results to the secretary of state.
Which are the states that could determine the presidential election?
The Cook Political Report said six states with 122 electoral votes are tossups: Florida (29), Georgia (16), Iowa (6), North Carolina (15), Ohio (18), and Texas (38).
Seven other states slightly favor Biden: Arizona (11), Michigan (16), Minnesota (10), Nevada (6), New Hampshire (4), Pennsylvania (20) and Wisconsin (10), according to Cook.
There also are single electoral votes in Maine and Nebraska that are up for grabs. Those are the only two states that assign electors based on which candidate wins a congressional district.
If Biden wins the three “blue wall” states that flipped to Trump four years ago — Michigan, Pennsylvania and Wisconsin, which before 2016 hadn’t supported a Republican presidential candidate in more than two decades — and holds onto every state Hillary Clinton carried, he’s the next president, according to 270towin.
Will there be lawsuits?
More than 275 state and federal lawsuits already have been filed, said Michael Morley, a law professor at Florida State University.
And there could be plenty more filed, many of them involving the unprecedented number of absentee ballots. There already are court fights over extending the deadline for returning them, and Morley said he expected battles over which ballots should be counted.
“With likely tens of millions or over a hundred million absentee ballots, or approaching that, we will see higher numbers of ballots that are rejected,” he said.
“If you have an election where the margin between the two leading candidates is less than the number of absentee ballots that have been rejected, you’re going to have a tremendous incentive for the trailing candidate to sue to get those ballots counted,” he said.
One key question: Will newly confirmed U.S. Supreme Court Justice Amy Coney Barrett participate in election cases? When he nominated Barrett, Trump linked his pick to his own re-election campaign.
“I think this will end up in the Supreme Court and I think it’s very important that we have nine justices," Trump said.
How Barrett will vote on election-related cases remains to be seen, Morley said.
“I think she would be less receptive to an argument saying the Supreme Court should ignore state law and do what the court thinks is fair,” he said. “She’ll likely be more sensitive than some of the other justices to the Constitution’s allocation of power — what the legislature is supposed to do versus what is it appropriate for the court to overrule what the elected branches have done.”
And this could all be moot if one candidate has a large lead, Hasen said.
“If it is not close, the amount of election litigation will be relatively light, except in places where there are key races at stake, such as Senate races,” he said.
Morley said some suits will continue no matter what as political parties try to set precedents for future elections.
Which state could be this year’s version of 2000′s Florida?
The 2000 election was held up as Florida struggled to count and recount the ballots. In many cases, the voter did not fully punch out the slot next to the candidate’s name. Poll workers struggled to count these “hanging chads” to see which candidate the voter actually preferred.
In the end, five Republican-appointed justices on the U.S. Supreme Court stopped the counting with Bush slightly ahead, making him the 43rd president.
Pennsylvania could be Ground Zero this time around. It was one of three long-time Democratic states that Trump flipped in 2016 and Biden, a native of Scranton, strongly is contesting it this time around.
Biden’s lead of 3.5 percentage points in the Real Clear Politics poll average is narrower than his advantage in either Michigan (8.2 percentage points) or Wisconsin (6.4 percentage points), the other states that had voted Democratic for more than two decades until Trump.
At this point in 2016, Hillary Clinton led Trump in Pennsylvania by 2.1 percentage points, in Michigan by 3.6 percentage points and in Wisconsin by 6.5 percentage points. Biden is leading by a larger margin in those three states this year.
Pennsylvania doesn’t count ballots early, has no previous experience with no-excuse absentee voting, and doesn’t have a way for voters to fix ballots with errors on them, such as mismatched signature, said Albert of Common Cause.
“Everybody is watching Pennsylvania,” she said. “Any of these issues in a state can make it so that state is not callable on Election Night.”
There will be plenty of absentee ballots to count, possibly delaying a final tally. In a Quinnipiac University Poll released Thursday, 41% of likely Pennsylvania voters said they planned to vote by mail, with 58% saying they would cast ballots in person.
In addition, there already has been plenty of litigation, with possibly more to come. The U.S. Supreme Court on Wednesday refused to overturn a state court ruling allowing ballots to be counted if they were postmarked by Election Day but received up to three days later. But three justices said they might revisit the issue after Nov. 3.
Trump blasted the decision on Twitter, calling it “a disaster” and accusing Democrats of “trying to steal” the election.
“Pennsylvania is the state I’m most worried about, because the parties are fighting so hard there and it will face election administration challenges, particularly during the pandemic,” Hasen said.
When will we know who controls the Senate?
Maybe quickly. Republican-held seats in three East Coast states, Maine, North Carolina and South Carolina, are up for grabs, and a Democratic sweep would all but guarantee the party control of the Senate.
And that’s before polls close in Arizona and Colorado, two other good chances for Democratic pickups.
In addition, GOP-held seats in Iowa and Montana are considered tossups, according to Inside Elections.
Meanwhile, Republicans are favored to oust only one Democratic senator, Doug Jones of Alabama.
Of course, if the races are very close, it could take weeks as the parties fight over which ballots should be counted, just as with the presidential contest.
When will we know who controls the House?
Democrats are expected to keep their majority, with Nate Silver’s FiveThirtyEight saying they were “clearly favored" to win and Inside Elections predicting the party gaining 10 to 20 House seats.
In New Jersey, only one Democrat, 7th District Rep. Tom Malinowski, is being targeted by House Republicans and Inside Elections just rated the race as “likely Democratic.” And a poll released Friday put Democratic nominee Amy Kennedy and party-switching Rep. Jeff Van Drew, R-2nd Dist., in a dead heat.
How many seats the Democrats wind up with won’t be known for days or weeks, however, as absentee ballots are counted long after Election Day. For example, the last House race in 2018 was called Dec. 6.
How will absentee ballots and mail-ballots affect the counting?
Mail-in ballots certainly will change how the count will go in New Jersey, but also in other states that are using larger numbers of mail-in ballots and expanded early voting.
As of Thursday morning, nearly 77 million votes had already been cast, according to the U.S. Elections Project, run by a University of Florida professor.
Some states have been doing this for a long time, while others, like the Garden State, are new to expanded vote-by-mail.
Officials in 32 states began processing ballots — verifying signatures and preparing ballots for counting — a week before Election Day, according to the Pew Research Center.
Plus, 23 states and Washington, D.C., can receive ballots after Election Day as long as they were postmarked by Nov. 3.
But two of the battleground states, Pennsylvania and Wisconsin, can’t begin counting their absentee ballots before Election Day, and both already have fought court battles over whether ballots postmarked by Nov. 3 but received later can count.
Each state handles vote counting differently, and the states on the West Coast will report results later anyway. (You can see when the polls close for every state here.)
“Nov. 3 will look very different than past Election Days,” said Rep. Cheri Bustos of Illinois, chairwoman of the Democratic Congressional Campaign Committee. “States will be processing more mail-in ballots than they have every done before. Voters need to be prepared for an extended count and even a recount."
Even though New Jersey and other states count ballots postmarked by Election Day but received later, including from the military, Trump said they shouldn’t be allowed to do so.
“It would be very, very proper and very nice if a winner were declared on Nov. 3, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws,” he told reporters at the White House.
What about voter fraud?
Despite claims by Trump and his Republican allies, there is no evidence that absentee balloting is marred by fraud.
A 2017 study by the Brennan Center for Justice at New York University, found the rate of voter fraud was 0.00004% to 0.0009%.
And the Washington Post found possible double voting or voting on behalf of dead people in just 372 of 14.6 million ballots cast in Colorado, Oregon and Washington, which send ballots to all registered voters just as New Jersey did this fall.
What are the deadlines for picking the next president?
The Electoral College, the body that actually elects the president, meets Dec. 14. So states must certify their elections by then.
Congress meets in joint session on Jan. 6, 2021, to accept the electoral votes and ratify the results of the election. The president is inaugurated on Jan. 20.
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Karin Price Mueller may be reached at KPriceMueller@NJAdvanceMedia.com.
Jonathan D. Salant may be reached at jsalant@njadvancemedia.com.
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