This is the second half of our two-part series predicting the likeliest scenarios for the 2020 election and its aftermath.
Who will win the 2020 presidential election? When will we know who won the 2020 election? What happens if the results are challenged? Who in the hell left the gate open? Was it the same person who let the dogs out?
If you are one of the millions of Americans seeking to resolve these important, existential questions, have no fear. We have answers. As with our election day forecast, our post-election predictions come from months of research, academic analysis, seminars and interviews with some of the country’s top experts in their fields including:
- The Aspen Institute: Aspen Digital’s “Preparing for a Contested Election” project
- Sally Buzbee: senior vice president and executive editor, the Associated Press
- Kristen Clarke: executive director for Lawyer’s Committee Under Civil Rights
- Trey Grayson: former Kentucky secretary of state and past president of National Association of Secretaries of State
- Sherrilyn Ifill: president and director-counsel, NAACP Legal Defense and Educational Fund, Inc.
- Kamala Harris: California senator and Democratic nominee for vice president of the United States of America
- Mary McCord: legal director, Institute for Constitutional Advocacy and Protection, Georgetown Law
- Elie Mystal: legal scholar and justice correspondent at The Nation
- Malcolm Nance: former counterterrorism and intelligence officer, author of The Plot to Hack America
- The National Task Force on Election Crises: A cross-partisan group of more than 50 experts in election law, election administration, national security, cybersecurity, voting rights, civil rights, technology, media, public health, and emergency response
- Nate Persily: James B. McClatchy Professor of Law, Stanford Law School
- Vivian Schiller: executive director, Aspen Digital
This part is simple.
Joseph Robinette Biden will be the next president of the United States of America.
Why we think this will happen: While pundits were also confident that Hillary Clinton would win in 2016, those predictions were the result of analyses of pre-election polls that gave her credit for tight races in swing states that Donald Trump eventually won.
Our prognosis is not an analysis.
There is not a single legitimate poll that shows a path to victory for Donald Trump. With millions of votes already cast, Biden’s lead in important swing states is already beyond the margin of error. Not only is Biden holding all of the states Clinton won in 2016, but the latest polling averages show Biden leading by more than six percentage points in Wisconsin, Pennsylvania and Michigan—states Trump won in 2016. Furthermore, there are no significant third-party candidates to split votes this year.
By every statistical and numerical measure, the Trump campaign is performing much worse than his initial campaign. And remember, Trump lost the popular vote in 2016.
We won’t know who won the presidency on election night.
Millions of Americans will be glued to the television sets waiting for their favorite pundit to announce a winner. But, remember, media outlets don’t call the race, they only project who they think will win. And, because of the unprecedented amount of mail-in ballots expected, it is impossible to know what percentage of the vote will still be rolling in long past election night.
“We cannot project winners [or] call races until we know for sure that someone has actually mathematically won or that they know they have no mathematical path to victory,” explained Sally Buzbee, who oversees the Associated Press’ global news operations notes. “One thing that’s very important to keep in mind is that in general, most states—not all, but most—tend to count mail-in ballots last; sometimes that can be days after Election Day. This has happened routinely over the last few years.”
But, according to Constitutional scholar and justice writer for The Nation Elie Mystal, none of that even matters because an election result isn’t official until it is certified by the individual states’ Secretaries of State. The deadlines for election certification vary from state-to-state and range from Nov. 10th to the middle of December. According to Mystal and others, these “artificial deadlines” could spur political maneuvering that might further delay election results.
“I think there are three dangers,” said Mystal. “The first danger is white supremacists, Proud Boys [or] militias just straight up beating the crap out of people. Danger number two is states certifying the results of the election before all the mail-in ballots have been counted, or discarding valid mail-in ballots so that they can certify the results before they count all the ballots. Problem number three... Is faithless electors going against the popular will.”
Why we think this will happen: Even if election officials count every single vote they can find, seven of the 10 states with the most electoral votes— California (55), Texas (38), New York (29), Illinois (20), and Pennsylvania (20) Ohio (18), and North Carolina (15)—will count mail-in or absentee ballots that are received up to three days after Election Day.
Florida never finishes its count on time. (Remember Bush v. Gore?) Polling in Georgia has the presidential race deadlocked and, with two Senate seats on the ballot and a history of electoral shenanigans, we should expect a long, drawn-out process. California usually takes a week to count their ballots.
Also, some states mandate automatic recounts when the races are within a certain number of percentage points.
Hold up. What about the faithless electors thing? They can do that?
A state legislature cannot appoint electors that will override the will of the people.
That’s the official opinion of Harvard Law graduate and afro curator Elie Mystal, along with the nonpartisan National Task Force on Election Crises, both of whom know more about this than that guy who posted that thing you read on Facebook. Although Mystal and the NTFEC both concede that states appointing faithless electors is technically possible, they agree that it is an unlikely scenario because it would be illegal and unconstitutional.
“It works like this,” Mystal began. “I’m in New York, so let’s say Biden wins New York. Well statewide, they’re two different slates of electors—the slate of electors of if the Democrats win, and the slate of electors if the Republicans win. So if Biden wins New York, what technically happens is that we elect a Democratic slate of electors, who are more or less bound to vote for Biden in the electoral college.”
And if they don’t?
“Well, the Supreme Court recently heard a faithless case and actually said that this would not be constitutional,” Mystal continued. “That’s how it’s supposed to work. The trick that the Republicans are trying to pull is that they’re suggesting that their states could elect a neutral slate of electors—so not Democratic, not Republican—who could then vote their conscience and not be tied to the popular vote-getter in their state. That is untested constitutionally.”
“I think it’s unconstitutional under the Supreme Court’s precedent. But again, you’re putting people like Amy Coney Barrett on the court. And again, I’m a cynic when it comes to the courts and their willingness to uphold democracy. But trying that would be a real moonshot for Republicans because I don’t know [that] they’ve got five votes on this.”
Why we think this won’t happen: State legislatures. The election taskforce explains:
Although the power to choose the manner in which electors are appointed means that state legislatures theoretically could reclaim the ability to appoint electors directly before Election Day, they may not substitute their judgment for the will of the people by directly appointing their preferred slate of electors after Election Day. Nor may they use delays in counting ballots or resolving election disputes as a pretext for usurping the popular vote. Doing so would violate federal law and undermine fundamental democratic norms, and it could also jeopardize a state’s entitlement to have Congress defer to its chosen slate of electors.
There you have it. It’s right there in writing.
There’s no way Congress would allow anyone in this administration to ever get away with something illegal or unconstitutional.
We should expect a number of election challenges from political operations on both sides.
Mystal explained that most election challenges happen in state courts, many of which are controlled by Democratic legislatures, courts and Secretaries of State. In fact, according to Mystal, a Biden blowout victory on election night might put the entire election to rest and result in no challenges at all.
“I think there’s a chance we might know [the presidential winner] on the night of the election,” he told The Root. “Again, it’s not a great chance, but there’s a chance. And if the GOP has to flip four, five, six States, I just don’t think they can get that done...It’s such a heavy lift.”
But the challenges limited to political organizations won’t be the only ones going to court to challenge election results.
Voter advocacy groups like the Lawyers Committee for Civil Rights Under Law and the Legal Defense Fund have teams of lawyers who will be working after the elections to make sure votes are counted—even if it means going to court. LDF’s Sherrilyn Ifill said that these issues may be litigated right up until the day the Electoral College meets on Jan. 6.
“There will be more provisional ballots cast than usual, Ifill told the attendees at the Aspen Institute’s conference on Election Day scenarios. “These are the ballots that are cast when you come up to the table and you know this is your polling place, but somehow your name is not on the books; you’re placed on an inactive list, or there are other issues associated with your ballot. You may be permitted to vote provisionally but the provisional ballots are not counted on election night. The following week, you have to come back into the board of elections to cure the provisional ballot, to explain why you should have been allowed to vote at that polling place.”
“In a number of states and jurisdictions where the elections may be close, even the provisional ballots will be critically important,” Ifill continued. And once again, to the extent that we have seen massive voter purges targeted at the African American community, polling place changes targeted at the African American community and other voter suppression activities, we should expect the disproportionate number of people who will be casting provisional ballots will be Black voters. And so once again, we will be pressing to make sure that African American voters who voted provisionally will have an opportunity to cure those ballots on the backend.”
Either way, we’ll see you in court.
Why we think this will happen: Again, there has never been an election in American history where Black voters weren’t disenfranchised. Plus, election challenges are usually handled in state courts and when they are appealed, the Supreme Court usually declines to hear them. The Supreme Court’s Bush v. Gore decision was an anomaly.
But, if Amy Coney Barrett is confirmed before the election, Mystal notes that she will be one of three current Supreme Court justices—along with Chief Justice John Roberts and Beer King Brett Kavanaugh—who got their legal breakthrough on the same court case:
There will be blood.
“I almost hate saying this because I certainly don’t want to suggest that this is definitely going to happen, encourage it to happen, scare people or anything like that,” said Mary McCord, the legal director for Georgetown Law’s Institute for Constitutional Advocacy and Protection. “But I think we do have to be prepared for the possibility that if private, unauthorized, but heavily armed militias do not perceive the result as legitimate, they could take action in the streets. Likewise, if the results of the election go the other way and the president wins the election but those on the other side believe it’s illegitimate, I don’t see as much of a risk. But there could well be protests if they—if the view is that the election is not legitimate, there very well could be protests in the streets, which would then draw out militias on the other side.”
“If Trump loses, his followers will grab their guns. If Biden loses, his followers will protest in the streets and Trump’s followers will grab their guns,” former intelligence operative Malcolm Nance told The Root. “It’s just a political reality.”
Why we think this will happen: Armed “security teams” are showing up at polling sites. Donald Trump has already told his white supremacist fight club to “stand by.” Militia groups have already said they will be “on patrol.” There have already been murders at pro-Trump rallies and Black Lives Matter protests.
When you look at the voter demographics, we know that most Black voters will vote for Biden. White Southerners and Midwesterners overwhelmingly support Trump. But Nance wasn’t referring to race when he mentioned the “political reality” of violence.
Blame it on the Baha Men.
Happy Election Day!