Countdown to the Count

Update 486 – Countdown to the Count:
What We Know, with 100 Hours to Go

In a little less than 100 hours, an election that has felt like the longest in our history will finally come to an end. More than 85 million people have already cast their votes, and more will in the days to come. These votes come despite a vicious pandemic, its adjoining recession, and attempts to undermine the election by President Trump himself. 

In battleground states, early vote totals are surging, but legal questions loom. Ninth inning court decisions threaten to throw a curveball. Nevertheless, enthusiasm remains high and turnout is sure to break records. More on the state of the race at week’s end, looking at currently available numbers both raw and projected, legal questions to follow, and what to watch for at the end. 

Good weekends, all….

Dana

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The Battleground 

Vice President Biden leads national polls by 10 points and turnout rates favor Democrats by over 17 points, pointing to a potential blue wave. Battleground states this year, ordered from most to least electoral votes, include: 

  • Texas (38 EVs): Trump is up by 1.2 points in Texas. This year, Texas limited mail-in voting only to those unable to come to the polls. More than nine million Texans cast votes this week, surpassing 2016 turnout. And more than 16.9 million voters are registered in Texas, an increase of 3 million from 2016. 
  • Florida (29 EVs): Both Biden and Trump are campaigning in Florida this week. Since Labor Day, Biden has outspent Trump three-to-one in Florida, and he is leading by 2.2 points in polls. Roughly 474,000 more registered Republicans have voted in-person in Florida than Democrats, but Democrats are leading mail-in voting by 637,000 votes. Republicans will likely continue to vote in-person, but total votes cast have already surpassed 2016 totals. 
  • Pennsylvania (20 EVs): Biden currently leads in Pennsylvania by 5.2 points. Since 2016, Democratic voter registration has declined by 10,000 while Republicans registered 205,000 voters. But Democrats hold a 700,000 voter registration edge statewide. So far, 2.1 million people, majority Democrat, have mailed in their ballots.
  • Ohio (18 EVs): In the polls, Trump currently leads Biden by 0.9 in Ohio. Ohio offers in-person early voting and the ability to request an absentee ballot up to three days before Election Day. More than 2.5 million Ohioans have already cast their ballots. But unlike other states, fewer Ohio Democrats and more Republicans are voting early and absentee compared to the same point in 2016.
  • Other states to watch: Other battleground states include Michigan (16 EVs), Georgia (16 EVs), North Carolina (15 EVs), Arizona (11 EVs), and Iowa (6 EVs), with polls showing Biden leading in Michigan by 9.1 points, Arizona by 3.1, North Carolina by 2.3, Georgia by 1.7, and Iowa by 0.3. While Trump is looking to flip Minnesota, which Clinton won by less than 2 points in 2016, Biden is leading the state by 8.2 points. NC, MN, and GA, along with Wisconsin, will likely report unofficial results by noon on Thursday, providing an indication of pre-election poll accuracy and the degree of red-to-blue shift in crucial swing states. 

November Surprises (Trick-or-Trump?)

The pandemic will likely depress in-person turnout on Election Day. This will be especially true in Midwest states like Michigan, where COVID cases have spiked. The election will hinge on mail-in voting, but USPS Postmaster General Louis DeJoy has made voter suppression a priority. In a recent New York case, DeJoy argued that on-time delivery of election mail was not a Constitutional right. In response, U.S. District Judge Emmet Sullivan on Tuesday ordered the USPS to increase trips to deliver election mail on time.

Other threats are coming directly from the President. During the presidential debates, Trump refused to say that he would accept independently-verified electoral results. Trump routinely instructs his supporters to watch the polls carefully, prompting fears of voter intimidation. Trump this week; “The only way we’re going to lose this election is if the election is rigged.” Trump’s statements signal a potential for political uproar or even post-election violence should the results be delayed and/or tight.

With so many mail-in ballots, results will take longer than normal to tabulate. Only eight states expect to have at least 98 percent of ballots counted by noon, November 4. Twenty-one states (MN is undecided as of yesterday) and DC count ballots that arrive after Election Day. Election officials in Michigan and Pennsylvania say that even unofficial results may take several days.

States’ different approaches will further complicate Election Day results. Because Democrats are more likely to vote by mail and Republicans more likely to vote in person, states that frontload the release of results from one or the other will skew early results. 

Recent and Ongoing Litigation 

Partisan differences in voting method leave open the potential for post-election litigation with serious consequences. Should litigation reach the Supreme Court, we may not know the winner of the presidential election and certain Senate elections until December or later. And whether Justice Barrett follows the standard of Chief Justice Roberts or Justice Kavanaugh will have a critical impact on any election litigation that reaches SCOTUS. Republicans have already initiated lawsuits across many states with mixed results. 

  • Pennsylvania: Last Monday, SCOTUS declined the GOP’s request to stay a PA Supreme Court ruling that mail-in ballots received within three days of Election Day could be counted. SCOTUS declined the request by a 4-4 vote, but the Court may reconsider the case after the election with Justice Barrett breaking the tie for the Republicans. On Wednesday, SCOTUS again denied a plea to deliver a decision before the election, but Justice Alito stated that the case “remains before us.” 
  • North Carolina: SCOTUS let stand a Fourth Circuit ruling on Wednesday that allows NC’s Board of Elections to count ballots received up to nine days after Election Day. The NC legislature had previously extended the mail-in ballot deadline to three days after Election Day. 
  • Wisconsin: On Monday, SCOTUS refused to reinstate a lower court order to extend WI’s mail-in ballot deadline to three days after Election Day. Justice Kavanaugh’s concurring opinion drew ire for its numerous factual errors regarding the prevalence of fraud among absentee ballots and favorable invocation of Bush v. Gore (2000).
  • Minnesota: Yesterday, the Eighth Circuit Court of Appeals ruled that Minnesotans’ absentee ballots may need to be received by 8 PM on Election Day in order to be counted and for election officials to segregate ballots received after that deadline. The Minnesota Secretary of State previously extended the state’s ballot deadline to seven days post-Election Day. MN ballot directions state that ballots must be postmarked on or before November 3rd and received within seven days to be counted. 

Litigation has so far revolved around Republicans’ faulty assertion that counting ballots received after Election Day extend the election beyond the one day authorized by the Constitution, conflating the Constitution’s restriction on voting with a restriction on counting ballots. No state declares its official vote count on election night and counting absentee ballots received after the Election Day deadline does not extend the period for voting. 

But for Tuesday night, Americans can look to particular states and districts for indications of the ultimate results. Florida’s results should come in earlier than others due to advanced counting of mail-in ballots. IN-05 is also a bellwether. Observers should watch for the results from Democrat Christina Hale’s race for the seat vacated by Republican Rep. Susan Brooks. Trump won the district by 11 points in 2016, but polls show Biden with a consistent lead this cycle. We may not know the final results on election night, but we will know which way the tide is turning. 

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