When the clock strikes midnight tonight, nothing will magically change. The president seems to think otherwise. In a tweet last Monday, which Twitter blocked as potentially misleading, Donald Trump proclaimed: “Must have final total on November 3rd.” He said that “it would be very, very proper and very nice if a winner were declared on November 3 instead of counting ballots for two weeks,” an alternative he deemed “totally inappropriate” and not “by our laws.” On Wednesday, Trump said at a press conference in Las Vegas, “Hopefully, the few states remaining that want to take a lot of time after November 3 to count ballots, that won’t be allowed by the various courts.”
There would be no legal basis for this. There is no “Cinderella rule” that mandates the halting of all ballot counting at the end of Election Day. As Representative Jamie Raskin, a Democrat of Maryland and a former constitutional-law professor, told me in a recent interview over Zoom, “Everybody knows what’s going to happen. Donald Trump around 10 or 10:30 is gonna say, ‘I won, I won, I won. Stop counting the ballots. It’s midnight. It’s a new Cinderella rule!’’’ But as Raskin emphasized, “There’s not a single state in America [in which] it’s the rule that you stop counting ballots at midnight. The rule is you count all the ballots. Let’s not let people lose their heads. We know what an election is. An election is the people vote, the votes come in, you receive all the ballots, and then you count all the ballots. That’s what it is.”
Counting ballots takes time—whether they are cast in person or by mail—and nothing requires that the process arbitrarily stop on Election Day. This has always been true. Nothing is different this round.
This is not to say that the end of Election Day is meaningless. Also last Monday, the U.S. Supreme Court issued a ruling barring Wisconsin election officials from extending the deadline for counting mail-in ballots that arrive after Election Day. In a concurring opinion, Justice Brett Kavanaugh rationalized a quasi-Cinderella rule for mail-in (as opposed to in-person) ballots on the theory that deadlines “avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election.” In his own concurring opinion, Justice Neil Gorsuch offered that “elections must end sometime, a single deadline supplies clear notice, and requiring ballots be in by election day puts all voters on the same footing.” In a dissenting opinion joined by Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan aptly retorted that “it is hard to see how the extension of a ballot-receipt deadline would confuse citizens about how to vote,” and that “protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days.”
But Trump seems to be arguing something far more radical—that all ballot counting must stop at midnight tonight, regardless of how or when the ballots were cast.
This would be a nonsensical standard, as most states don’t finish counting ballots on Election Day. In a recent report, The New York Times asked election officials whether they expect to have all votes counted by the end of November 3. Only eight states anticipate that by noon tomorrow, 98 percent of their ballots will be counted.
States could finish counting their ballots at wildly different times, and that stems from variations in state law. In Alabama, for example, absentee ballots are counted “upon closing of the polls,” at 8 p.m. eastern time. Ballots postmarked on or before November 3 that arrive after the polls close are not counted. In Illinois, by contrast, ballot counting begins at 8 p.m. on November 3, but mail-in ballots postmarked “no later than election day” that arrive before November 17 are counted. If a mailed ballot is rejected because the signature on the ballot-certification envelope and the signature “on file in the office of the election authority … do not match,” Illinois law requires that the election authority notify the voter and “state that the voter may appear before the election authority, on or before the 14th day after the election, to show cause as to why the ballot should not be rejected.” This process takes time.
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.
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