More than 97 million Americans have already voted and tens of millions more are scheduled to vote on Election Day as the months-long campaign between President Donald Trump and Democratic presidential nominee Joe Biden reaches its conclusion.
But it is likely that the results of the election will not be determined Tuesday night due to unprecedented levels of mail-in voting and differing state laws on how long ballots can be counted after Election Day.
The country could be in for a week of chaos — perhaps longer — if the winner is not immediately clear by Tuesday’s end. Primary elections earlier in the year demonstrated how large numbers of mail-in ballots and dizzied election boards led to court battles and recounts. The prospect of uncertainty on a national level could be as mild as delays or as extreme as violence in the streets.
President Donald Trump and Democratic presidential nominee Joe Biden squaring off during the first presidential debate at the Case Western Reserve University and Cleveland Clinic in Cleveland, Ohio on September 29, 2020 (Jim Watson/Saul Loeb/AFP via Getty Images)
Biden leads Trump by 7.2 points, according to the latest Real Clear Politics polling average. An election forecast model from The Economist favors Biden to clinch 270 votes in the Electoral College but the race is expected to come down to some battleground states.
The battleground states most likely to decide the election include Arizona, Florida, Michigan, North Carolina, Pennsylvania and Wisconsin. Trump won all six states in 2016, but polling data indicates that Biden holds marginal leads in each state, The Wall Street Journal reported.
Nearly all of the votes are expected to be counted on election night in only 16 states, according to FiveThirtyEight. Florida is the only battleground state included and the state is likely to have near-complete results in a matter of hours after the polls close at 8:00 p.m. (RELATED: Are Battleground States Ready For Election Day?)
An additional 23 states are expected to have counted the majority of their ballots on election night. Arizona and North Carolina will likely release most of their ballots within hours, but the official results could take several days if the race is too close to call. Biden leads Trump by less than one point in Arizona and Trump leads Biden by less than one point in North Carolina, according to recent polls.
A new CNN poll pushes the overall average to Biden +0.1 – but you have to look at the overall trend lines in the graph, which is decidedly going toward Trump. Arizona hasn’t gone blue since ‘96, which was a three-way race (Perot). pic.twitter.com/lBceBE2z5K
— Joe Concha (@JoeConchaTV) November 1, 2020
Roughly two-thirds of all ballots cast early in Wisconsin were absentee, according to NBC News, and the state is unlikely to have a full tally before Wednesday, the Milwaukee Journal Sentinel reported. The Supreme Court ruled in a 5-3 decision Oct. 26 that mail-in ballots in Wisconsin could only be counted if received by Election Day, CBS News reported.
Michigan Secretary of State Jocelyn Benson said in an Oct. 29 statement that it could take until Friday to count all of the ballots. Nearly all of Michigan’s early voters cast their ballots by mail, according to NBC News, and the state elections board does not allow votes to be counted until Election Day, NPR reported.
Eleven states are expected to have only some of their ballots counted on election night. Pennsylvania Secretary of State Kathy Boockvar has said that the “overwhelming majority” of ballots would not be tallied until Friday. Nearly all of the state’s early voters cast their ballots by mail, according to NBC News.
The Supreme Court ruled in a 4-4 decision in October not to issue a stay on a Pennsylvania Supreme Court decision allowing ballots to be counted up to three days after Election Day, Politico reported. Trump railed against the decision in a Monday tweet, calling it “very dangerous.”
The Supreme Court decision on voting in Pennsylvania is a VERY dangerous one. It will allow rampant and unchecked cheating and will undermine our entire systems of laws. It will also induce violence in the streets. Something must be done!
— Donald J. Trump (@realDonaldTrump) November 3, 2020
The variability in state laws and unpredictable nature of counting mail-in ballots has likely set up the stage for political chaos. The Trump and Biden campaigns have reportedly assembled their attorneys in preparation of post-election legal disputes over how and when ballots can be counted, according to Fox News.
Even if the results of the election are clear by the end of the week, there is one nightmare scenario that could have wide-reaching political ramifications and even spark civil unrest. There are 64 possible combinations in which neither candidate wins 270 electoral votes and the race ends in a 269 – 269 tie, according to the nonpartisan election forecaster 270toWin.
A FiveThirtyEight election model found that there is a less than 1% chance the race is tied at 269 electoral votes. In such an event, the Constitution specifies that the decision goes to the state congressional delegations sent to the House of Representatives.
Each state has a congressional delegation comprised of its representatives in the House. In the event of an Electoral College tie, individual representatives would not pick the president but rather would vote as part of one of 50 congressional delegations.
Texas, for example, has a congressional delegation comprised of its 36 representatives in the House. Because Texas has 23 Republican representatives and only 13 Democrats, the delegation would cast one vote for Trump to resolve an Electoral College tie. A candidate would need more than half of the 50 state congressional delegations and Republicans currently hold 26 despite Democrats having a majority of the 435 individual seats.
The U.S. House of Representatives chamber (Brendan Hoffman/Getty Images)
The Senate concurrently picks the vice president if the Electoral College is tied. A FiveThirtyEight election model favors Democrats to win at least two seats in the Senate and there is a chance that the parties are split. Such a scenario would give Vice President Mike Pence the power to break the tie and vote for himself.
This scenario is highly unlikely to happen but an Electoral College tie could delay the results by months as Congress scrambles to select candidates in a decision that would arguably be seen as undemocratic to many voters. (RELATED: Here’s What Would Happen If Trump And Biden Tie In November)
What is much more likely is that numerous states, including major battlegrounds, are unable to produce a final count on election night.
As campaign lawyers and the courts prepare for what could be a frenzied litigation spree, the uncertainty surrounding who won the election could drive protests and even sporadic violence.