US election: What happens if there is no winner on election night? | Americas| North and South American news impacting on Europe | DW | 15.10.2020
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US election: What happens if there is no winner on election night?

With increased mail-in voting and deep political division, the US election results could take longer than usual to confirm. DW explains the scenarios that could follow election day.

US election results usually trickle in on election night, followed by a concession speech from the losing candidate in the early hours of the morning. 

But this year, with record numbers of Americans voting by mail due to concerns over COVID-19, ballots will take longer to tally, dragging election night into a days- or even weekslong process after November 3. Add to this doubts some Republicans have cast on the credibility of voting by mail and President Donald Trump's repeated refusals to commit to accepting the results of the election — including during the most recent presidential debate — and the aftermath of the election could be chaotic.

So here's what you should know about the ways the 2020 election could play out.

Mail-in voting slows the process

Due to the coronavirus, 81.7 million absentee ballots have been requested or sent to voters for the general election according to the New York Times.

Read more: USPS reforms: Is mail-in voting for the US election under siege?

Early voters line up outside a polling station in Columbus, Ohio

The US could see once-in-a-century voter turnout this year

In Colorado, Oregon, Washington, Utah and Hawaii, this should not be an issue, as voters and election officials are used to dealing with mail-in voting. Other states that have made voting by mail easier for citizens since March could take a day or more to count ballots, especially those that can't open mailed ballots until election day, including the battleground states of Wisconsin and Pennsylvania. 

During the primaries that occurred after March 17, a Washington Post analysis found it took states an average of 4 days to report nearly complete results. 

"One thing I would say about this country's election managers, the administrators, is that they are a very, very dedicated lot," said Edie Goldenberg, a professor of public policy and political science at the University of Michigan. "They've worked very hard to prepare for this election. So, I think that the difficulties that we certainly saw in a number of primaries, many of those have been addressed."

In November's general election, states will be processing many more ballots than in the primaries. Some states, including crucial swing states like Pennsylvania, North Carolina and Michigan have extended their deadlines to accept ballots postmarked by election day until mid-November in some states.

Even for states that do require ballots be received by election day, it could take a week to count them all if the race is close, as was the case in Arizona in 2018.

A person drops applications for mail-in ballots into a mail box in Omaha, Nebraska

Some states accept mailed ballots as late as November 23 as long as they are postmarked by November 3

"It's a little hard to know what to predict," Goldenberg told DW. "Some states are going to be in a very good position to know where they stand with regard to the vote, even on election night. But lots of them aren't."

Casting doubts on casting ballots

In the run-up to the 2020 election, President Trump and other Republicans have questioned the credibility of mail-in voting, despite cases of fraud with mail-in voting being very rare — as is voting fraud in general — according to an analysis by the New York Times

The president himself votes by mail, including in the most recent midterm elections and the Florida primary this year.

The president is "concerned about particular states that automatically mail out ballots to every registered voter," Acting Deputy Secretary for the Department of Homeland Security Ken Cuccinelli told DW's Conflict Zone. 

Voting by mail has not previously favored one party over the other. In fact, Republicans used to be slightly more likely to vote absentee according to Goldenberg. However, due to recent messaging, Republican voters are now half as likely to request mail ballots as Democrats. Among Americans planning to vote, 6 in 10 want to do so in person (80% of Republicans and 40% of Democrats), while the other 4 in 10 will cast their ballots by mail, according to the Brookings Institution

The divergence in how Democrats and Republicans plan to vote this year will likely mean initially reported results from in-person voting will skew Republican, while later results from mail-in ballots will swing Democratic.

"If it's lopsided enough, then oftentimes what we see is that the media call the election, and this year that would be dangerous in a number of states," said Goldenberg.

A litigious election

At the time of writing, 365 legal cases about the election had been filed and both campaigns have amassed legal teams leading up to the election. 

Most lawsuits about how the election is administered will be decided in state courts, according to Bruce Ackerman, a constitutional scholar and law professor at Yale Law School.

He and other experts believe it's unlikely that we will see a repeat of the 2000 Bush v. Gore Supreme Court case that decided the outcome of that presidential election, despite President Trump's statements to the contrary.

"The fallout of Bush against Gore was against the Supreme Court of the United States," Ackerman told DW. "Without any precedent, it shocked legal scholars from across the spectrum."

Read more: Trump's Supreme Court pick stays silent on recusal in election cases

What Ackerman says is more likely is that Congress would choose the winner.

Constitutional questions

If no candidate secures a majority of electoral votes due to a tie or unresolved disputes over states' votes, the newly elected House of Representatives would then decide the president as late as January 6, as stipulated in the US Constitution. The last time this happened was in the 19th century.

Further complicating matters is if states haven't selected their electors by December 8 — perhaps due to still pending lawsuits — Congress doesn't necessarily have to accept their state's results.

If no president is decided upon by inauguration day on January 20, the next in presidential succession becomes the acting president, which could be the vice president-elect or the Speaker of the House, depending on if the Senate has selected a vice president by January 20.

Accepting the results

Another possible outcome is that Trump refuses to accept the election results if he loses. In response to Trump's comment that "We're going to have to see what happens," in September, US Senators unanimously passed a resolution guaranteeing a peaceful transition of power.

Many election watchers remain hopeful that the results will be clear enough that it won't come to that.

"I'm generally optimistic that we're going to make this work because the interest in the election is extremely high," said Goldenberg. "I really think that we're going to run a reasonably smooth election in November."

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