While most election results have been released, it is important to note that the election is not yet over. There are many reasons for this, mainly attributed to the various methods each State uses to tabulate votes.
Rules vary State by State as is allowed by the US Constitution.
Nationwide, states can begin certifying results today, as of November 10 while final deadlines vary according to state law. Most will have completed the process by the end of the month.
In past elections the votes were tabulated as they were counted, allowing the major media on cable and broadcast networks to predict outcomes based on continuously updated vote counts. Once a lead was established and surpassed the remaining number of votes, the media could predict the winner of that state. It was acceptable to have CBS or CNN call an election for or against someone on election night.
With the recent change allowing for mail in ballots it is difficult for anyone to predict the outcome without knowing precisely how many votes remain to be counted in each state and county. While absentee voters need to request a ballot to vote, mail-in ballots are sent to all eligible voters based on existing voter registration lists. In those states it is difficult to determine how many citizens would vote by mail or choose to do so in person. Mail-in votes could also be dropped off at polling stations and at sites designated to accept them.
Some states counted mail in votes as they came in, while others put them aside to be counted after the closing of the polls on Tuesday November 3rd. To add to the confusion, laws in 21 US states permit mail in votes to be received after Election Day and included in the final vote total.
For anyone who watched the results as they came in on Election Night, it looked like President Trump was headed for re-election. Too close to call was the mantra on most of the major networks. It was not until the following morning where we witnessed leads shrink and then flip in several key states in favor of Joe Biden.
Democrat voters were encouraged to vote by mail in advance of the election, while the Republicans initially encouraged voters to vote in person on election day. This resulted in the wild swings in the vote leads in states where mail in votes are accepted after November 3rd or where mail in votes are counted after that date.
At the same time reports were coming in of delays in counting and irregularities in allowing observers to verify the counting procedures in several key states, including Michigan, Georgia and Pennsylvania.
As of this morning, in Georgia, with 16 electoral votes, Biden has the lead with 49.5% to Trump at 49.3% and 1% remaining to be counted. If the final count margin is less than .5% the State can be required to conduct a recount. The law in Georgia requires the secretary of state and then the governor to certify the results of the election within 17 days, which would be by November 20. The timeline can be modified by court order, however, subject to just cause. A recount is expected.
In North Carolina, with 15 electoral votes, Trump is leading by over 75,000 votes with 99% of the votes counted. North Carolina allows mail in votes to be counted until November 12th as long as they were postmarked by election day.
In Alaska with 3 electoral votes only 50% of the vote has been counted and President Donald Trump has 62.1 % of the vote.
Wisconsin allows for a recount if the margin is within 1% and is requested by whoever loses. Trump is down by 20,500 votes or 0.6% but the results are not official until all 72 counties have canvassed their results. Counties have until November 17th to finalize the process and then President Trump can request a recount by the following day. A recount must be completed within 13 days.
The current status of the election has Joe Biden with 290 electoral votes and President Trump with 214. With Joe Biden ahead of the 270 electoral votes required to win, both his Party and most major media outlets have declared him as President Elect. That does not make him the winner.
It is important to remember that in order to win the election, the votes counted need to be confirmed or certified in each state and then the electoral college votes are counted. While states do allow recounts or audits if the results are in dispute, they must meet strict guidelines that demonstrate the resulting change could change the results.
Many seem to forget that in the 2000 election, Al Gore had been declared the winner, only to have the result challenged over a close vote in Florida, ending in the win for George W. Bush. The decision on that vote was not declared until early December, when the US Supreme Court settled the dispute.
December 8th is the deadline for resolving election disputes. All state recounts and court contests over presidential election results must be completed by this date. December 14th is the date the electors meet in each state and cast their ballots for president and vice president. The deadline for the receipt of these ballots is December 23rd and electoral votes are counted January 6th, 2021.
President Trump faces an uphill battle in his efforts to challenge the certification of the vote. To win he must dispute the current results with valid legal arguments that result in a recount or audit of the votes. Challenges are based on a variety of reasons in several states and include documented inaccuracies of the voting software used to tabulate the results or operator error, ballots counted that were postmarked after the deadlines, observers prevented from monitoring the vote count process, ineligable voters counted among several other documented issues.
Each issue is heard by the court and determined to be relevant or inconsequential, so it is up to the legal team in each jurisdiction to make their case for a change to the final vote count, while the opposing party can dispute the relevancy of the charges.
There appear to be several states where legal teams have been dispatched to challenge the current election figures.
In Arizona, where major media outlets declared Biden as the winner while there were still a substantial number of votes to count, the election boards can begin certifying the results as soon as today, six days after the election, and no later than 20 days after, or November 23. On the fourth Monday following the election, November 30, the results from the election boards are presented to the secretary of state who will then certify them.
In Pennsylvania, unofficial returns are due from county clerks today, November 10. Candidates then have five days to petition for a recount in individual counties before the votes are certified as official. Certification would have to wait until any recounts are completed. Voters must allege errors in the initial count. By law, any recount would have to be completed by November 24.
In Michigan, the board of state canvassers are, by law, to meet at the Secretary of State’s office 20 days after the election, which would be November 23. The Secretary of State can direct completion of the statements of electors for president and vice president beginning as soon as today.
While the current status of the election may end up being correct, in an election where the voting is so close it is imperative for everyone to await the final results. Allow the court challenges to be heard, and for the courts to rule accordingly. It's all part of the process and the key to keeping the integrety of the election process as fair and open as possible, whichever way it goes.
It may not be perfect but in a world where many have died fighting to preserve democracy and the Constitution, all Americans need to remember this.
