Election day has come and gone, and we don’t yet have a winner. This, of course, is not a surprise. Many experts, election officials and journalists have anticipated precisely such an outcome, and have sought to counsel patience. An election, after all, is not a day but a process, and the process is not complete until all votes have been counted.
If we are unaccustomed to having to wait for the results, we are also unaccustomed to voting in a time of pandemic. The fact that we don’t yet know who our next president will be is not evidence of a system malfunctioning; to the contrary. It is proof that election officials around the country are taking the requisite time to make sure that all ballots – including all those cast by mail – are properly tallied.
Counting early ballots – and some 93 million Americans cast their vote before election day – is labor intensive. Envelopes often need to be hand-opened; signatures need to be checked against those in state records; and election officials will have to perform these acts while practicing safe-distancing. Some states, such as Colorado, have been counting mail-in ballots since they arrived; others, such as several counties in Pennsylvania, will only begin the task after election day. So patience is the order of the day. The integrity of the electoral system demands no less.
Alas, this commonsensical message appears to have been lost on the president himself. At a campaign rally in the key swing state of Pennsylvania on Saturday, Trump direly predicted that if election day passes without a clear winner, “You’re going to have bedlam in our country.”
Such fearmongering is nothing new for the president. More troubling was the opinion penned last week by Justice Brett Kavanaugh, supporting the US supreme court’s refusal to extend the date for the receipt of mail-in ballots in Wisconsin. In a sloppy concurrence, Justice Kavanaugh averred to the state’s interest in avoiding “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election”. States, he added, “want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter”.
In warning of “chaos and suspicions of impropriety”, Kavanaugh appears to be simply repeating, in modified language, the president’s baseless attacks on mail-in voting. On the same day that the court issued its opinion, the president tweeted:
“Big problems and discrepancies with Mail in Ballots all over the USA. Must have final total on November 3.”
Twitter marked this post with the warning, “Some or all of the content shared in this Tweet … might be misleading.” Unfortunately, Twitter was not able to issue a similar warning about Justice Kavanaugh’s opinion.
And so while we might hope that the call for patience might rise above partisanship, Kavanaugh’s opinion reminds us that patience too has its politics. A couple of years ago, election law expert Ned Foley coined the term “blue shift” to describe the fact that mail-in and provisional ballots tend to break for Democratic candidates. For example, in the 2018 Arizona senatorial race, Martha McSally, the Republican candidate, enjoyed a 15,000-vote lead over her Democratic rival, Kyrsten Sinema, on election day. But by the time the state completed its count of mail-in and provisional votes McSally found herself defeated by Sinema by some 56,000 votes.
Trump and Kavanaugh are not the first to raise suspicions about blue shift. In 2018, the former House speaker Paul Ryan groused about several Republican losses in California congressional races: “We had lots of wins that night [ie, on election night], and three weeks later we lost basically every contested California race.” The losses, Ryan insisted, were “bizarre”.
But there is nothing bizarre about the fact that in this election, more than twice as many Democrats – who have expressed greater concern about the health risks of in-person balloting – as Republicans have chosen to vote by mail. Indeed, if this weren’t an established fact, then Trump’s unrelenting attack on the integrity of voting by mail would be unintelligible – if not foolhardy.
Of course, the president might be correct in predicting bedlam – especially if he works overtime to cause it. The last four years have demonstrated Trump’s power to sow chaos, discord and division; and if the president believes that triggering unrest will serve to muddy the count of mail-in ballots, he will certainly not shy away from doing so. Here we can share the hope that we will quickly enough know the winner. But should the count take time, we must practice precisely what the president and his minions insist we can ill-afford – patience.
Lawrence Douglas is the James J Grosfeld Professor of Law, Jurisprudence and Social Thought, at Amherst College, Massachusetts. He is presently writing a book on the legal and constitutional consequences of a possible refusal by President Trump to acknowledge defeat in the next election, to be published by Hachette in 2020. He is also a contributing opinion writer for the Guardian US More
