Whether due to the pandemic, a sense of political urgency or a perceived threat to voting itself, a record number of Americans will have cast their ballots before Election Day arrives Tuesday.
But if the voting process was front-loaded this year, the results could well be back-loaded. Tuesday could come and go without voters knowing whether Republican President Donald Trump or former Democratic Vice President Joe Biden has won, or if the majority in the U.S. Senate has flipped from Republican to Democratic.
It depends on how long it takes and in what order states count and report all the early, day-of and late arriving votes — and whether, in such a rancorous climate, any challenges emerge along the way. In this past week alone, courts have issued last-minute rulings that affect whether ballots arriving after Nov. 3 can be counted in several states.
“It’s absolutely vital people not expect an answer on the 3rd or even the 4th,” said Kim Wehle, a University of Baltimore law professor who wrote the recent book “What You Need to Know About Voting and Why.”
Wehle is among the elections experts priming voters not to view delayed results as somehow less legitimate, and warning that the lead in some races may shift as partial totals are announced not just hours after polls close but days.
That happened in the Baltimore mayoral primary in June, when former Mayor Sheila Dixon’s lead on election night gradually shrank as later-arriving ballots from younger and first-time voters were tallied. They ultimately swung the Democratic race to City Council President Brandon Scott.
Lead shifts could similarly occur this election because, broadly speaking, Democrats are more likely to have mailed in ballots, which some states might not finish counting until after Election Day, while Republicans tend to prefer in-person voting, which produces more immediate totals.
Another issue is the ongoing delays in the U.S. Postal Service, and the prospect that some ballots might not make it to election offices in time. This has prompted pleas in recent days that anyone still holding their mail-in ballot deliver it to an election drop box, not a mailbox.
Some fear that if early totals put Trump ahead — particularly in a swing state like Pennsylvania, which doesn’t begin processing absentee ballots until Election Day — he could try to claim a premature victory and discredit subsequent tallies.
As Trump said in a tweet Monday that was blocked by the social media outlet Twitter as potentially misleading, “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.”
The vote-counting process "could go off the rails,” Wehle said. “There are plenty of opportunities for legal challenges that could swing the election to the courts.”
But Wehle and other elections experts say one thing could take some of the wind out of potential challenges: decisively wide vote margins on election night. If a clear trend develops as vote totals are reported over the course of the evening, a likely winner could emerge sooner. Many states have changed their rules to begin counting early voting or mailed ballots long before Election Day, which could hasten some results.
However long it takes to determine a winner, all indications are that voters are highly engaged this year. Early voting is shattering previous records. The drop-box selfie has become a thing on social media. Many obsessively click on political forecasting sites. And many are checking state election board sites to track if their ballot has arrived and been processed.
“This election is unusual because of the anxiety it’s produced in the country,” said John T. Willis, a former Maryland secretary of state.
Even reliably blue Maryland, where Democrats from Biden to mayoral candidate Scott are expected to win, state election officials have seen an influx of mail-in ballots and record numbers at in-person early voting centers. As of Friday, the fifth day of early voting, nearly 710,000 people had cast ballots, a level not reached until the seventh day of early voting in the 2016 presidential election.
Maryland is among the states allowing early processing and counting of ballots, which some counties began Oct. 5.
Stella Rouse, who directs the University of Maryland’s Center for Democracy and Civic Engagement, got a firsthand view Monday, when early voting began, of just how eager people are to cast ballots this year.
“I wanted to be there at 7 when the polls opened, and the line was three blocks long,” said Rouse, an associate professor of political science. “I’ve never seen that at my polling place.”
She left with plans to return later — and a sense that turnout this year will exceed the nearly 62% nationally of 2008, the highest in the past 50 years, when Democratic President Barack Obama was elected.
“This is really going to surpass that, and the dynamic is very different,” Rouse said. “People are really going out to vote because of Trump, and the fear that if he’s reelected what will happen to our country and our democracy.”
Many have long anticipated this election, seeing it as their chance to weigh in on a tumultuous year, one in which the president was impeached, the deadly coronavirus continues to upend daily life and unresolved issues of race and justice repeatedly flare up.
The year has also seen challenges to voting, and voting safely in a pandemic. This summer, even as officials were encouraging people to vote absentee to avoid the spread of the coronavirus, slowdowns in mail delivery raised concerns as well as suspicions that Trump’s new postmaster general was trying to sabotage the election.
Additionally, lawsuits in which Republicans have attempted to limit everything from the number of drop boxes and how long ballot counting can go on have been making their way through the legal system, Wehle said.
While some say these are needed to guard against fraud, others say such concerns are baseless and these measures are instead meant to suppress the vote.
Some cases have reached the level of federal appeals and the U.S. Supreme Court.
Rulings on these cases have rolled out in the past week, involving states expected to be battlegrounds. Results have been mixed.
On Monday the Supreme Court on a 5-3 vote refused to allow Wisconsin to extend the counting of absentee ballots beyond Election Day.
On Tuesday, Texas' Supreme Court upheld the governor’s order limiting each county to a single ballot drop box — even in the likes of Harris County, home to nearly 2.5 million registered voters.
But on Wednesday, the U.S. Supreme Court ruled that absentee ballots in Pennsylvania and North Carolina could be accepted and counted for up to three and nine days after Election Day, respectively.
On Thursday, a federal appeals court sided with Republicans who challenged a Minnesota rule allowing ballots postmarked by Election Day to count as long as they arrived within a week. The ruling orders any ballots arriving after Tuesday be separated from the rest in case a future decision invalidates them.
Willis said attempts to limit voting, and Trump’s frequent grousing about a “rigged” or fraudulent election, are backfiring to a certain extent and serving to motivate people even more to make sure their ballots are counted.
“Every barrier that someone tries to throw up,” he said, “people react.”
By Thursday for example, more than 9 million Texans had voted in person or by absentee, surpassing the total of 8.97 million who voted in the last presidential election.
Other states are similarly breaking their own records, although experts caution that many people who would have voted anyway just took the opportunity this year to do it earlier.
“Maybe they just had to get it off their chest," Wehle said.
The charged political atmosphere has raised concerns about what might happen at polling places, with Trump having urged his supporters "to go into the polls and watch very carefully.” Many Democrats have taken that as a veiled threat of intimidation.
Local, state and federal officials say they are on the lookout for misinformation and intimidation and have urged voters to call their offices to report concerns.
“We will not tolerate threatening conduct that seeks to intimidate, harass or dissuade Americans from exercising their right to vote," Robert K. Hur, U.S. attorney for Maryland, said in a recent statement. "If you see something, say something.”
Hur appointed Leo Wise, the assistant U.S. attorney known for prosecuting former Democratic Mayor Catherine Pugh and the Baltimore Police Gun Trace Task Force, to oversee complaints of election fraud and voting issues in the state.
How Tuesday and subsequent days will play out is anybody’s guess given all the variables. Did voters get their ballots in early enough to avoid potential mail delays and meet their states' deadlines? With fewer polling places on Election Day because of the pandemic, will they be swarmed? Will voter margins be wide enough to allay fears of a drawn-out drama?
With the pandemic prompting many states to change the way they process absentee votes, expect a less than smooth rollout, Willis said.
“Anytime you change systems, you’re going to have problems,” he said.
Even under normal circumstances, 1% or 2% of absentee ballots won’t be counted because of a technical issue, such as a late postmark or lack of a signature, Willis said.
In Maryland’s June primary election, the state’s first conducted largely by mail, several problems emerged, from some voters never receiving their ballots in the mail to delays in getting a final count.
Nationally, any problems this time will be magnified. Trump has refused to say he’ll accept results if he doesn’t win, raising the specter of a drawn-out legal battle or more frightful scenarios, such as an Electoral College that doesn’t go along with how the states voted or the president refusing to step down.
Some say the vote would have to be extremely close or compromised in some way to trigger such chaos.
“The president of the United States doesn’t count ballots," Willis noted. “There may be a sideshow. But who wins or loses is based on the tabulating of votes.”
Like others, Willis believes Pennsylvania and Florida could prove critical. But on election night, he will be watching other swing states for trends that could suggest the outcome won’t come down to just one or two of them.
Even in non-battleground Maryland, there are signs to watch for, Willis said. The vote margins in Western Maryland, for example, could signal what happens in parts of Pennsylvania since they’re in the same media market and see the same political ads, he said.
Control of the Senate, with the current 53 Republicans holding a slim majority, is also at stake. And while neither of Maryland’s senators is up for reelection, Ben Cardin and Chris Van Hollen, both Democrats, could rise in power if their party takes over the majority.
Whatever the outcome after the ballots are counted, elections experts predict a future with far more mail-in voting nationwide. It was growing increasingly popular even before the pandemic. Already, elections are almost entirely by mail in five states, while several others allow their counties to go that route.
The tens of millions who voted by mail or drop box this year may not be willing to stand in line at a polling place in the future, Rouse said.
“The pandemic has let the genie out of the bottle,” she said. “I don’t see how we go back.”