"Election Day" isn't a finite thing — at least, not when it comes to legal closure. Using projections based upon early tallies reported by states and some exit polls, media organizations may "call" particular races tonight — and even call the entire presidential election if there are enough projections from enough states. And individual candidates — including, perhaps, President Donald Trump — may claim victory based upon those same numbers. According to Axios, Trump has told some people privately that he will declare victory tonight regardless of whether anything is settled.
One of the enduring lessons of the 2020 election should be the value of not fueling a train of misinformation — and of waiting to announce results until there are, you know, results.
But none of these declarations has legal consequences. Simply put, we stop voting today, but the election doesn't end today — no matter what you might hear tonight. Indeed, as more and more Americans vote in more and more different ways, and as different states progressively add those votes to their overall tallies in inconsistent ways, one of the enduring lessons of the 2020 election should be the value of not fueling a train of misinformation — and of waiting to announce results until there are, you know, results.
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As much as any previous election, today's is going to prove exactly why we must avoid turning the coverage of election returns into an overproduced reality show. Because arguably the nature of our modern election process is why it's even possible for a candidate to try to prematurely claim victory in the first place.
Let's start at the beginning. Although everyone will have voted by the end of today (whether in person today, in person before today or through a mail-in ballot sent no later than today), there isn't a single legal respect in which the election will be over. To the contrary — every state takes some time to make sure every ballot is counted, and any irregularities are accounted for and, if a race is within a sufficiently small margin, any recounts available under state law are completed. That's why federal law gives states at least 35 days to finish counting and certify their results, and that's just for presidential elections. For state and congressional races, there's no federal deadline (indeed, we expect at least one Senate runoff in Georgia). And this is hardly a modern development.
It took George Washington the better part of six weeks to find out that he had won the first election under the Constitution — even though the Electoral College voted for him unanimously. Many of us have seen the famous picture of President Harry S. Truman holding up the inaccurate "Dewey Defeats Truman" headline run by the Chicago Daily Tribune the morning after the 1948 presidential election. And most of us are old enough to remember Bush v. Gore, when the fight over Florida's 25 electoral votes (and, as a result, the entire presidential election) wasn't resolved until the Supreme Court ordered an end to the recount late in the evening on Dec. 12.
Media projections, too, have their limits. In three of the last five presidential elections (2000, 2004 and 2016), there was no consensus media "call" by midnight on Election Day itself. In those cases, it was because the races were far too close in the right (or wrong) number of states. This time around, the complication is the stunning percentage of voters who voted early or remotely — ballots that states count at different times and in different order. And some of those ballots aren't due until a few days after Election Day (so long as they were sent in time), which, depending upon how close things are, could also make a difference.
None of this changes if Trump or some other candidate points to early, incomplete returns and "declares" victory. States will continue to count ballots until they are done and can certify the actual winner, regardless of what's been tweeted by whom. And even public concessions of defeat aren't legally binding; at most, they represent a nonbinding, unenforceable commitment from the conceding candidate not to contest an adverse result any further — whether publicly or in court. Simply put, there will be a lot of flash today. And maybe, if it's not actually close, the media will call the entire election for one candidate or another — a sign that the actual, legal results are likely to follow suit. Likely, but not guaranteed.
States will continue to count ballots until they are done and can certify the actual winner, regardless of what’s been tweeted by whom.
But if election night projections and declarations have no real legal significance, why do we have them in the first place? The answer, of course, is that having results trickle in, having suspense build and having projections unravel in real time is entertaining.
For all that, however, it may be time to reconsider the wisdom of this model from the perspective of public responsibility. After all, when the British vote for members of Parliament, the first thing we usually hear — as mandated by British law — are the formal results (not just projections), complete with the perfectly British awkwardness of having the candidates on stage as the results are read. Such an approach (maybe without the candidates on stage) is worth considering here, as well — to take the drama out of election night and also to minimize the risk of malicious or inadvertent mischief.
In that universe, it would be impossible for someone like Trump to seize on early, incomplete results to declare "victory" and thereby imply that, should the complete results paint a different picture, they would somehow be illegitimate and/or fraudulent. Indeed, we've been lucky, throughout American history, not to have a presidential candidate attempt such a claim. Headlines aside, Dewey never went on the radio to claim victory over Truman. Here's hoping that our luck doesn't run out tonight.