In some states, votes that are valid and will be counted haven’t even arrived at election boards yet. In North Carolina, absentee ballots postmarked by Election Day will be accepted until November 12. In Ohio, ballots postmarked by Monday will be accepted until November 13.
Then there are provisional ballots, which are counted last. Under a 2002 federal law, any voter whose registration is in question, who doesn’t have required documentation, or who has other problems must be allowed to cast a provisional vote, which is reviewed later to determine whether it will count.
Judith Shulevitz: Protests won’t be enough to stop a coup
Although the turnout surge and growth in absentee voting are particular to this election, none of these factors is new. It’s not uncommon for some races to stretch well into November before their outcome is clear. Several New York Democratic-primary elections this spring took weeks to resolve, thanks to chaos in the Empire State’s election system; in 2000, the winner of the presidential election in New Mexico was not clear for 10 days. Usually, however, the presidential race is not so close.
The White House is not the only high-stakes prize up for grabs in this election. Although Democrats have captured a Senate seat in Colorado and lead in Arizona, their chances of capturing the Senate are fading, with many of their candidates trailing, including Cal Cunningham in North Carolina. Senator Doug Jones has also lost his reelection race to Republican Tommy Tuberville. Democrats are on pace to hold the House, though, although their margin of control remains unclear.
While vote-counting continues, much of the focus now will turn to the courts, as both parties seek to either make sure the rules are enforced in the way that most benefits them, or change the rules in their favor. This represents a continuation of widespread litigation ahead of Election Day, but if that was like an aerial bombardment, this will be hand-to-hand combat. Both the Trump and Biden campaigns have been preparing for months for the prospect of an election that will be contested, and potentially decided, in the courts. Trump has gone so far as to suggest that the confirmation of Justice Amy Coney Barrett to the Supreme Court will give him an edge.
The details of these fights will be arcane and often incomprehensible to everyone but the lawyers involved—and probably even to many of them. But one way for lay observers to assess this litigation is to determine whether a suit seeks to include valid ballots, and thus guarantee that Americans’ votes are counted, or to exclude them, and keep people from exercising their rights.
The hours and days ahead will be a delicate moment for democracy. Election experts warn that faith in elections is a fragile thing that is hard to repair once undermined, and, as my colleague Yoni Appelbaum has written, democracy depends on the consent of the defeated—but they also have to believe that the process by which their side lost was free and fair.
In September, Biden assured Americans that there would be a smooth transfer of power after voting.
“I will accept it, and he will too. You know why?” Biden said. “Because once the winner is declared, once all the ballots are counted, that’ll be the end of it.”
We’ll soon learn whether he was right—though perhaps not as soon as many people would like.