What To Expect On Election Night (And Beyond It)

November 2, 2020

Elections in the United States have always been uniquely long events. While campaigns in other countries tend to last no more than several weeks, our current campaign cycle will turn 1,194 days old on November 3. And while most election results are pretty clear by the end of election day, this year we need to stay engaged and be prepared to potentially wait weeks to know the final results. 

“We need to be prepared to not call the election until every single vote is counted,” Dr. Amaka Okechukwu, Assistant Professor of Sociology at George Mason University, told Supermajority News. “That requires not expecting a result on election night, but days or maybe weeks later.”

One of the reasons for the delay is that more people are voting by mail this year than usual because of the coronavirus pandemic, and those extra mail ballots will take time to count. Ongoing litigation and any litigation that arises after Election Day could also delay the election result.

Not only will extra mail-in ballots take time to count, but there have also been a number of lawsuits over whether ballots received after November 3 can be counted — particularly in swing states. Last Monday, the Supreme Court rejected a challenge from Democrats in Wisconsin, maintaining that only ballots received by Election Day could be counted in the state. In early October, the Supreme Court was also deadlocked in a similar case in Pennsylvania, this time denying a challenge from Republicans and allowing the state to count ballots that arrive via mail after Election Day — so long as they had been postmarked before polls closed. Now that Amy Coney Barrett is seated on the Supreme Court, Republicans want the court to reconsider the case

Cases before the Supreme Court concerning which ballots should be counted are a continuation of heated debates about mail-in ballots that have been going on for months. This summer, some Democrats accused the Trump administration of sabotaging the post office before the election. Trump has been clear that he opposes mail-in voting and in August he even admitted that he hoped to discourage mail-in ballots by denying the post office much-needed financial relief.  

Unfortunately, the potential discounting of a number of mailed ballots isn’t the only form of voter suppression that could shape this election. For example, the Supreme Court ruled earlier this month in favor of Alabama banning curbside voting, effectively disenfranchising thousands of disabled or immunocompromised voters for whom in-person voting is inaccessible or dangerous because of the pandemic. Black and Latinx voters are also disproportionately subject to voter intimidation, face longer wait times at polling locations than white voters do, and often travel farther to vote as dozens of polling sites in majority Black and Latinx neighborhoods have been shuttered. The populations of Puerto Rico and the U.S. Virgin Islands are still denied representation in the electoral college, meaning voters there cannot weigh-in on the presidential race.

There’s no doubt this type of voter suppression could unfairly affect who wins the election, but no matter the actual outcome, President Trump has refused to commit to a peaceful transfer of power to an elected successor if he loses the election. An ex-president refusing to leave office would be an unprecedented act, and experts can only theorize about what might happen next. Dr. Lessie Branch, a racial policy scholar and associate professor in the School of Business at Metropolitan College of New York, told Supermajority News that “if [Trump] is not declared the winner based on the outcome of the election, he will dispute the validity of the election results,” given that he has already laid the groundwork for doing so by spreading misinformation about voter fraud. While Trump and other key Republican figures claim voter fraud is a major problem in the U.S., research actually shows that it’s extremely rare.

If Trump loses the election and refuses to leave office as he has indicated, it could create a “real constitutional crisis,” Dr. Claire Wofford, an associate professor of Political Science at the College of Charleston told Supermajority News. “Technically, the Department of Justice, Department of Homeland Security, and the military are under the executive branch and are supposed to follow his orders. The theoretical possibility is there for some sort of short-term standoff,” she says. Military leaders have already said that they won’t intervene in the case of an election dispute, and it’s unlikely that others in the executive branch would either.

“The judicial system could also become involved,” says Wofford. That includes the Supreme Court, which Republicans argued should not be left without a ninth justice in case the court was asked to hear an election dispute, thus rushed to confirm Amy Coney Barrett after Justice Ruth Bader Ginsburg’s death in mid-September. “New problems could arise and produce new litigation from the night of the election until days, weeks, even months later,” says Wofford, “and that’s just over the Presidential election. I would expect lawsuits over Congressional and even statewide elections.”

To be clear, although the Supreme Court now has a conservative majority that does not necessarily mean it would favor the Trump campaign in an election dispute. However, history indicates that the court is likely to decide an election dispute in the interest of stability over all else. This was the case two decades ago in the court’s ruling in Bush v. Gore, when the court ruled against the Gore campaign’s request for a full and fair recount. The late Justice Antonin Scalia claimed at the time that allowing a recount was “not a recipe for producing election results that have the public acceptance democratic stability requires.”

This preference for stability may be why “[Trump] is dog-whistling and bull-horning calls for violence,” says Branch. A recent YouGove poll of 1,505 voters found that 56% said they expect to see “an increase in violence as a result of the election.”

While delayed election results, the fear of post-election violence, and Trump’s refusal to commit to a peaceful transfer of power will no doubt make the following weeks uncertain and stressful, there are some things Americans can do to prepare. The most important thing people can do to ensure a fair outcome of this election is to vote before the polls close on November 3. “The more overwhelming the vote margins, the less chance for claims of fraud or the appearance of illegitimacy,” says Wofford. Voters can also make a post-Election Day safety plan (like this one). 

If a period of unrest and violent protest does follow Election Day, marginalized people will likely be disproportionately targeted and subjected to violence, and those in positions of privilege need to show up for the marginalized people in their communities. “I would encourage people to know their neighbors so that if things seem amiss, you can check in on them and direct your support in specific ways,” says Okechukwu. “We have to reimagine safety in ways that center relationships and accountability in our communities, not surveillance, profiling, and violence.” 

Finally, Wofford says, “This is still a nation where the people remain sovereign.” In the event of a crisis after Election Day, Americans must continue to exert pressure on their elected officials, demand democratic transition, and remember that “our best hope will be what it always has been—ourselves.”