While there is no simple cure to the threats we face to our democracy, one small change could go a long way towards restoring trust: states should stop reporting incomplete vote totals on election night. This will provoke howls of protest from the news media which is, even now, preparing elaborate stages, fancy electronic maps and complex forecasting models in a race to be first to call the election—some even going so far as to put a “democracy desk” on their stage—in order to explain the chaos that is likely to happen.
But “election night” no longer exists and states can get rid of it. Today it’s more like election month. Early voting begins in some states in early October and continues into November and absentee voting has skyrocketed. Some of these trends are the direct result of COVID which shut the country down in 2020, leading election officials in many states to come up with ways to hold an election that didn’t involve standing in line inside a polling place and possibly contracting the virus. For the first time in history, only 30% of voters cast their ballots on Election Day in 2020.
The second reason election night no longer exists is that most states have laws which forbid counting the early votes before Election Day. That is understandable—imagine the unfair impact reporting an early vote winner might have on subsequent voters. So, most states forbid counting these early votes until Election Day itself. This was never much of a problem when the early vote counted for a small portion of the overall vote. But in 2020, in addition to the large increase in early voting, early voting itself became politicized. These two factors combined to make the Election Day vote a very poor predictor of the election outcome.
This happened because President Trump decided, even before Election Day 2020, that absentee ballots would be the source of fraud against him (although he and the First Lady voted absentee). He convinced his supporters to vote in person while Democrats were urging their voters to vote early and/or by absentee ballot. The election night returns created what became known as “the red mirage”—the in-person votes were for Trump—the early and absentee ones for Biden. As more and more votes were counted the candidate in the lead changed, creating a fertile situation for conspiracy theorists. In Phoenix’s Maricopa County, election deniers believed that 40,000 ballots had been shipped in from China marked for Biden. They set about looking for bamboo fibers in the ballots—surely one of the crazier theories in an altogether crazy year.
The third reason to get rid of election night is the prospect of chaos or even violence at polling places on Election Day and the prospect of interrupted or chaotic vote counts. We aren’t even at Election Day and already a court in Arizona has had to step in to keep armed men from establishing a threatening presence around ballot drop-off boxes.
The move towards hand counting of ballots and the many possible instances of chaos in a close election makes it likely that in some instances the courts will have to step in and sort things out—a prospect that could take some time.
The combination of these factors plus many very close Senate races means that trying to call winners on election night—let alone control of the Senate—is a fool’s errand and one that is guaranteed to create even more confusion and suspicion as the votes are counted or the courts sort out issues. Below are multiple charts showing how many early votes and absentee votes were received as of the end of October in states where there is a key Senate race. Of the nine states with competitive Senate races, only three allow votes to be counted before Election Day. In the other six, vote counting could take a week or more. Early and absentee voting numbers are already breaking records, leading analysts to predict an even higher turnout than in 2018—which broke records for a midterm election. In many states, Republicans are also voting early—a sign that perhaps the convenience is outweighing the paranoia Trump spread in 2020. No matter how you look at it, election officials who cannot start counting votes until Election Day have a huge job before them, and they will need to do it accurately.
The bottom line? There is no reason that we need to know winners on election night especially when the race to call elections creates confusion and a fertile field for more conspiracy theories. States should resist the hyperventilating of the networks and announce winners when enough of the vote has been counted that the outstanding vote is trivial and cannot change the outcome.
EARLY VOTES CAST AS OF the END OF OCTOBER 2022 AND WHEN THEY CAN BE COUNTED
|Arizona – votes can be counted on receipt – early release is a felony|
|Florida – votes can be counted on receipt – early release is a felony|
|Georgia – votes can be counted at 7 AM on Election Day|
|Nevada – votes can be counted 15 days before Election Day|
|New Hampshire – votes can be counted after polls close on Election Day|
|North Carolina – votes can be counted at 5 PM on Election Day|
|Ohio – not available|
|Pennsylvania – votes can be counted at 7 AM on Election Day|
|Wisconsin – votes can be counted after polls open on Election Day|
Sources: Votes cast as of the end of October from Tracking Early Voting in the 2022 Midterm Elections by State (nbcnews.com)
- State rules for counting early votes: https://www.ncsl.org/research/elections-and-campaigns/vopp-table-16-when-absentee-mail-ballot-processing-and-counting-can-begin.aspx