Trump’s Cinderella rule is a direct attack on these state rules, and the ballots that are presumably valid and received prior to the close of the polls on November 3, but are not counted before 12:01 a.m. on November 4. Such an idea is not only antidemocratic but, on a more practical level, completely unworkable. According to the nonpartisan Brennan Center for Justice, workers have a long list of things to do once polls close, including comparing the number of voters who checked in to vote with the number of votes cast (a process known as “canvassing”), tallying and posting unofficial results, and then transferring them (in some instances by helicopter) to a central location for consolidation by the state. Mail-in ballots must separately be opened, verified, unfolded, stacked, and then run through machines.
The process of making election results official is known as “certification.” States’ target dates for certification fall anywhere from November 11 (e.g., Virginia) to December 8 (e.g., Maryland), which is also the date set under federal law for state legislatures to meet and decide on alternative means of choosing the state’s electoral votes if the election results are contested. In no state can an election official release election results before the polls close.
Put another way, the counting of timely and valid ballots must continue past 12:01 a.m. on November 4. Any alternative claim is a myth that undermines the right to vote itself.
In 1964, the Supreme Court in Reynolds v. Sims emphasized that “representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes.” In 1966, the Court in Harper v. Virginia Board of Elections similarly reiterated that the right to vote is “a fundamental political right because it is preservative of all rights.” Validly cast ballots do not simply disintegrate under the Constitution because there are not enough hours in a single day to methodically, carefully, and legitimately count them all.
Of course, the other crucial factor that has contributed to a public expectation that election results are available on Election Night is the media. Each election cycle, the Associated Press disperses about 4,000 freelance reporters among county election centers, whose job it is to call in vote totals to more than 800 entry clerks at the AP. Researchers verify the data before calling any race and before sending voting tallies to major news networks, which also separately collect updates from precinct-level election officials. The AP is part of the National Election Pool, a consortium of major news networks—including ABC, CBS, CNN, Fox, and NBC—that partners with the exit-polling company Edison Research to analyze data and statistical models before definitively announcing a race’s winners.
This year, it is incumbent on the press to respect each citizen’s constitutional right to vote by not “calling” this election based on early or incomplete data under pressure from President Trump. If nothing else, this uniquely stressful election season is showing the world that if American democracy is to survive at all, the real power must remain squarely in the hands of the people.