Please Let It Not Be Close: Why 2020 Prez Outcome Probably Won’t Be Decided In Court

This essay is part of TPM Cafe, TPM’s home for opinion and news analysis. 

As I sit here watching results roll in, the only thing that seems pretty clear is that this election will disappoint almost everyone in America — other than perhaps Mitch McConnell (and, for different reasons, Ann Selzer).  But I remain hopeful that the presidential election results will not fall within the so-called “margin of litigation.” 

You may have heard of the election administrator’s prayer: “Please let it not be close.”  Sometimes, old prayers take on new meanings. The old meaning of this one was: please let it be a decisive victory for someone, so that the flaws in our threadbare, underfunded, understaffed system of election administration do not become too apparent.  The new meaning is: please let it be decisive so that President Trump’s inevitable false claims of a stolen election will be more obviously ridiculous, and even more importantly, so that the outcome of the election will not be decided in court.

As of Wednesday morning, it looks likely that Biden will win by enough of a margin that neither recounts nor litigation about disqualifying specific categories of ballots is likely to come anywhere close to altering the outcome. If so, that means much less such litigation will take place at all. In other words, while the outcome is not what Democrats hoped for or expected, it looks like it may be just enough to answer the election administrator’s prayer. It’s not worth it, either to Republican candidates and party organizations or to the judges most sympathetic to them to fight tooth and nail for a few votes when those votes won’t be enough to change the outcome anyway.  

As Trump’s loss becomes clearer in the coming days, I expect that more Republicans will break from him and refuse to say that normal ballot counting amounts to fraud.  TPM has already reported this process beginning, although other Republicans appear to be following the President down the wildly irresponsible road of amplifying completely false claims of a stolen election.  But whatever the rhetoric, I don’t expect the Trump legal team to try to make this election into Bush v. Gore (and if they did, I don’t expect Trump-friendly judges to sign off on such efforts) when there’s no real path from such litigation to an actual victory.  If Biden’s margin of victory were smaller than the margin of litigation, all this would be quite different.

There still might be some Senate or House races that are so close that they do fall within the margin of litigation. Luckily, there are structural reasons why legal contestation over a close election result for the Senate or House is significantly less fraught with constitutional peril than the same thing in the presidential race. In the presidential race, there is a clear time-urgency that simply is not present in any other election in our system.  

We need a president to be inaugurated January 20, so we need electoral votes to be ready to be counted in Congress on January 6. This time-urgency has led to much mischief, as those old enough to remember Bush v. Gore will recall: working backward from January 6, there are a range of lesser deadlines that give courts potential excuses to order an end to the counting or recounting of votes in response to strategic litigation by a candidate. There is no such thing for elections to the House or Senate. Senators and Representatives can wait to be seated, and regularly do, as recounts, election contests and litigation play out in their state. Governors can often appoint interim senators if needed. If some Senate race is still not ready to be called when the new Senate convenes on January 3rd, it won’t even be the only race outstanding: there’s definitely at least one January 5 Senate runoff in Georgia, which will take up plenty of the nation’s political oxygen for weeks.

As we sit in this place of uncertainty, here are two political science questions to ponder about what might have happened this week, each of which has potentially important implications going forward:

First, very few people now answer their phones when pollsters call. And worse, the high rates of nonresponse are known by pollsters to be skewed along multiple axes, requiring ever more elaborate systems of demographic stratification/weighting.  (Famously, most pollsters started stratifying by education level after 2016.)

Errors in correcting for nonresponse, like errors in predicting “likely” voting, are a huge potential source of polling error that is separate from sampling error — and sampling error is the only kind of error pollsters report when they talk about the “margin of error.” So here is my question. What if, with the nation becoming ever more politically polarized, and with political identities becoming ever more salient, we are now having differential nonresponse along the axis of partisanship itself? In other words, what if even controlling for education and other variables, Republicans are simply less likely to pick up the phone or answer a poll than are Democrats? The more salient and meaningful partisan political identity becomes, the more plausible it seems that it might do work by itself to predict some behaviors, perhaps including nonresponse bias. The more that is true, the more impossible it will become to construct a pre-election poll in whose results we can be at all confident.

Second, perhaps we have just conducted something like a controlled experiment to answer the question: does in-person pre-election organizing and get-out-the-vote work matter? This year, Republican campaigns did a lot more of this, because both they and their voters were less acutely worried about COVID-19. If the number of redundant and useless texts I received long after casting my ballot are any indication, the Democrats’ electronic substitute for a field operation was nothing to get too excited about.

I also received many texts from Republicans; I doubt their vaunted electronic operation was so great either. But the results of the election might suggest that in person contact was important, and Republicans benefited from doing more of it than Democrats did. Television ads and Facebook ads and so on have some value; even text messages probably have some value, despite my skepticism. However, it is definitely not too early for Democrats to begin figuring out how to canvass more safely in person despite the pandemic, in a way that Democrats seem to have largely failed to do this fall. If Democrats are serious about governing, they’d need to get very serious about this, very quickly. Early voting begins in Georgia for the U.S. Senate race(s) on December 14th.

Joseph R. Fishkin is the Marrs McLean Professor in Law at the University of Texas at Austin School of Law. His first book, Bottlenecks: A New Theory of Equal Opportunity, was published by Oxford University Press.