Americans will go to bed tonight not knowing who won the White House. The feeling might remind them of the Bush v. Gore fiasco. But we’re not there — yet. The path that was Vice President Joe Biden’s most likely avenue has not been foreclosed. And the fact that we have no real indication yet of the extent to which that path is in jeopardy for Biden is a reality that we’ve been warned since April might be coming.
An election that came down to Pennsylvania, Wisconsin and Michigan was always the likeliest of scenarios, and how those states adapted — or failed to adapt — their elections to the pandemic means that it still could be days before we know how that scenario shakes out.
That said, Biden’s failure to win the seemingly toss-up Sun Belt states that were called tonight gives Trump plenty of room to sow confusion and doubt, and make undemocratic demands that the counting of legitimately cast ballots come to an end. It also increases the possibility for court fights that will add to the uncertainty. “We want all voting to stop,” he declared early Wednesday.
Here are five points on the state of play as we head into the early hours of the day after the Election
The states we knew weren’t going to get called on Election Day night … are not getting called tonight.
Since the pandemic took hold, election experts have predicted that the COVID-19 outbreak would bring about a surge in vote by mail, which would in turn slow down — in some states, quite significantly — the time it took to deliver results. Both predictions have been borne out. States with a lot of pre-pandemic experience counting absentee ballots, like Florida and Ohio, were able to tabulate their results within hours of the poll closing. But results from other battleground states will take until early Wednesday, if not several days, to be projected.
These dynamics have produced what election prognosticators had been dubbing “red” and “blue” mirages. States with slow absentee counting processes would start looking red until the mail-in vote (which has been leaning Democratic — in some states, dramatically so) was fully processed. The quick-counting states would have an early vote count tabulated soon after the polls closed that would looked promising for Democrats until the Republican bent in the in-person Election Day vote cut into (or completely wiped out) those advantages.
The states that Biden was hoping to secure wins from tonight — but didn’t — would have ended things early, but he has other ways to win.
The bad news for Biden is that Republicans indeed overcame the early voting advantages Democrats appeared to show in some quick-counting states that had been polled as toss ups for Biden, including Florida and Texas. And polling that suggested he would do even better in states like Georgia and North Carolina — two other states not expected to drag their tabulation out several days — has not manifested in the votes that have been counted.
But Biden’s path did not depend on any of these states. Winning them would have certainly helped his supporters go to bed more easily tonight, since waiting for every last slow-counting battleground state — and specifically Wisconsin, Pennsylvania and Michigan — would be less necessary.
What happened tonight is the scenario that was discussed explicitly in the Spring, before polling suggested he had a good shot at those Sun Belt states that could have given him the White House early
The groundwork for these dynamics was laid several months ago.
It’s worth noting that it didn’t have to be this way. Election officials in Wisconsin, Pennsylvania and Michigan pleaded with their Republican legislators to let them start processing their mail ballots early, the way the states that wound up being called on Tuesday night did. Michigan election officials secured a minor concession from the GOP — the very large counties got a one day’s jumpstart on processing their absentee ballots — but legislatures otherwise refused, setting up the scenario Trump has spent several months broadcasting that he’d take advantage of.
He will now claim that he’s clearly ahead, given the trend of states that were called by early Wednesday, and assert falsely that the continuing counting of ballots — again, a thing we have known since April would be happening for the next several days — is some Democratic plot to steal the election.
What’s more is that the drawn-out count gives him and his lawyers more time to kick dust up in the courts. It’s unclear how effective any such lawsuits would be in tossing the election to him, even if he got the U.S. Supreme Court to endorse some of the Republicans’ most extreme legal theories. That will come down to the margin of votes in these key states — which we don’t have a clear picture of at the moment given the relatively few ballots that have been tabulated in those places so far.
But even the threats by the President and his allies, and talk around the litigation, could sow baseless doubts, while giving his supporters another reason to view an election that Trump loses as illegitimate
Trump is already capitalizing on the chaos with bountiful false claims and misinformation.
President Trump and his allies have been sticking to their tried-and-true playbook of sowing chaos and confusion around the process and results.
That’s mainly surfaced in the bogus claims, aired frequently in recent days, that late-arriving ballots are illegitimate, and that states must finish counting votes on election night. Both of those nonsensical and false arguments have been coupled with the more traditional efforts to cast a cloud on the election through unfounded assertions of voter fraud in Democratic-majority metropolises across the country.
As if on cue, early Wednesday morning, President Trump gave a clear example of his attempts to sow confusion around the vote-counting process. He tweeted that “We are up BIG, but they are trying to STEAL the Election,” and added that “votes cannot be cast after the Polls are closed!”
Of course, the votes in question were cast and mailed before the election itself — what this reveals is an effort from the President and his allies to invalidate legally cast votes that happened to arrive after Nov. 3.
In remarks early Wednesday morning, Trump gloated about winning the vote in states where outstanding mail ballots could still tip things to Biden — and even claimed to be ahead in states like Pennsylvania, where the picture is nowhere close to being clear. “We’re winning Pennsylvania by a tremendous amount,” Trump said.
He also audaciously claimed it was Democrats that would go to court to tip the results in their favor as the count continued — even though it his campaign and its who are now looking for court interventions.
“We were getting ready to win this election. Frankly we won this election,” Trump said, while promising that he would go the Supreme Court to stop the counting.
“We don’t want them to find any ballots at 4 o’clock in the morning and add them to the list,” he said.
Not knowing the White House result tonight means that we’ll have to keep a close eye on ongoing election litigation.
Pennsylvania is ground zero as a place where litigation could wreak havoc while the count continues on. It is expected to be the slowest to deliver the results of those three key midwestern states. It also will deliver the biggest electoral vote count of the three, awarding 20 votes to the victor.
And it’s where the pre-election litigation has been most aggressive. On several occasions the Supreme Court has been asked to reverse a mail voting deadline extension that gave ballots postmarked by Election Day three more days to arrive at election offices. Those bids have not been successful yet, but the addition of Justice Amy Coney Barrett to the court could give Republicans a deciding vote.
In recent days, several other GOP lawsuits have popped up raising minor rules disputes that are perhaps less consequential than the deadline fight, but could still help tip the election Trump’s way.
Joe Biden is probably not happy that, because of the losses in Texas and Florida, and probably elsewhere in the Sun Belt, he’ll have to white knuckle it while this bad-faith legal maneuvering plays out. But Chief Justice John Roberts — who has distanced himself from the more nihilistic tendencies of the rest of the court’s conservative majority — would have also likely slept more easily had an election night landslide for Biden put these legal questions out of play.