“There are no redos when it comes to elections,” says Al Schmidt. “Everything has to be done just right.” His spiel is part gospel, part warning, part pep talk. As Pennsylvania’s secretary of state, Mr Schmidt oversees elections in America’s most contested battleground. The candidate who carries his state—Kamala Harris or Donald Trump—will probably take the White House. When Mr Schmidt alludes to “everything” that needs doing in this election, he means more than just voting. In Pennsylvania and across the country, tallying votes is a decentralised and drawn-out process. It may take days to know the result after election day on November 5th. (In 2020, it took nearly four days until major news organisations declared Joe Biden the winner.) The narrower the margin, the more time will be required for counting and recounting. Even then the result will be unofficial until Congress certifies it on January 6th 2025. In between lie a series of procedural steps performed by thousands of local and state officials.
Few Americans thought much about the mechanics of their elections until Mr Trump and his lawyers furiously sought to overturn his loss to Mr Biden. At every opportunity they tried to subvert what had long been considered a pro-forma process. Mr Trump’s allies alleged voter fraud in bunkum lawsuits, unsuccessfully strong-armed local and state officials to alter tallies and tried and failed to persuade Mike Pence, then Mr Trump’s vice-president, to block Congress from affirming the result. That day Mr Trump’s supporters ransacked the Capitol.
If this year’s election is as close as polls suggest, expect another fraught few weeks between November 5th and January 6th. Mr Trump will probably declare victory before news networks have called the race, stoking acrimony and misinformation. That Ms Harris is likely to do better among voters who post their ballots means that her fortunes will probably improve as the count progresses, since counting postal votes is usually slower. This occurred in 2020 in Pennsylvania, where Mr Trump’s initial lead turned to defeat by just over 80,000 votes, fuelling conspiracy theories about election theft. Mr Schmidt, then a local commissioner in Philadelphia, was targeted by Mr Trump on Twitter for refusing to investigate a “mountain of corruption”. Threats from MAGA supporters followed.
Counting: the days All times in Eastern Standard Time (GMT–5)
Tuesday November 5th
Election day
07:00 Polls open in Pennsylvania. Counting of mail-in ballots starts
20:00 Polls close in Pennsylvania. Deadline for mail-in ballots to have reached counting officials
20:00 Unofficial results begin to be posted by local election boards in Pennsylvania’s 67 counties. In 2020, the close vote meant that four days passed before major news organisations declared that Joe Biden had won the state
Friday November 8th
In Pennsylvania, official canvass of the election starts. Counties “reconcile” their votes to check that the number of people recorded as having voted in each precinct matches the number of ballots counted. Officials also check the eligibility of provisional ballots
Tuesday November 12th
Unofficial county returns due to Pennsylvania’s secretary of state. Recount petitions must be filed within the next five days. If no revisions needed, then counties must certify
Thursday November 14th
Pennsylvania’s secretary of state orders an automatic recount for any statewide race within a half-percentage-point margin
Wednesday November 20th
Recounts in Pennsylvania must begin no later than this date
Monday November 25th
Deadline for counties in Pennsylvania to certify to the secretary of state, who then starts on statewide certification
Wednesday December 11th
Deadline for governors (or, in the District of Columbia, the mayor) to submit a certificate of ascertainment, naming their state’s electors, to the National Archives
Tuesday December 17th
Electors meet in their state capitals to cast their votes
Wednesday December 25th
Deadline for electoral-college votes to be sent to the National Archives and the president of the Senate (ie, Kamala Harris in her capacity as vice-president)
Monday January 6th 2025
Congress meets to count electoral-college votes and affirm the winner. Kamala Harris presides
Monday January 20th 2025
12:00 The new president is inaugurated
In 2020 it took four days for news outlets to call the state, which delivered enough electoral-college votes to clinch Mr Biden’s victory. The delay stemmed partly from the fact that Pennsylvania prevents officials from pre-processing postal votes before election day. They cannot remove ballots from their envelopes, verify signatures and prepare ballots for machine counting. (Wisconsin is the only other swing state to similarly restrict pre-processing.) In 2020, amid the pandemic, 39% of ballots were cast by mail in Pennsylvania. The share may not be so high this time.
In Pennsylvania the count—or “canvass”—of postal ballots begins at 7am on election day. Most counties in the state, because they receive state funding, are required to keep at it until the job is finished, without pause. To be counted, postal votes must be received by the time that polls close, at 8pm on election day.
States write laws and set parameters for election administration, but counties handle the bulk of the work. They are like fiefdoms, says John Jones, a former federal judge in Pennsylvania; America has more than 3,000 of them. County commissioners select polling places, recruit staff and oversee the canvass. Then they report their tallies to state officials, who add them all up and certify the statewide result. Certifying means attesting to the accuracy and completeness of a count; until then returns are unofficial.
Allies of Mr Trump who claim without evidence that the 2020 election was rigged have been shut out of the most important statewide jobs in Arizona, Pennsylvania and even those swing states governed by Republicans. As a result, state officeholders are unlikely to block certification should Mr Trump lose. But some rogue officials at county level might withhold certification and thereby impede the rest of the process. Their job is “ministerial”, not discretionary, courts have ruled. They have no authority to investigate fraud or errors—under Pennsylvania law, that is for prosecutors and courts. In October a state judge in Georgia ruled that county election boards could not “play investigator, prosecutor, jury and judge” if they suspect fraud, and that they must certify once counting is finished.
Still, if Mr Trump loses, some county commissioners will probably allege improprieties and refuse to certify, inviting stand-offs with state officials. Already dozens have tried this in elections held over the past four years in every swing state but Wisconsin. When two Republican officials in Wayne County, Michigan, declined to certify the 2020 canvass there, Mr Trump tweeted: “Having courage is a beautiful thing.” In 2022 a Republican commissioner in Otero County, New Mexico, said his refusal to certify a primary election was based on “gut feeling”, not “evidence”. These cases were resolved when state officials or candidates either secured or threatened to seek a “writ of mandamus”, a court order compelling commissioners to certify. In Arizona two scofflaws were indicted.
Yet even unsuccessful efforts can mean long delays. In Pennsylvania, during the primaries in 2022, three majority-Republican county boards refused to certify the results because they decided that misdated postal votes need not be counted, contrary to state guidance. Courts ordered the boards to include those ballots and they eventually complied—more than three months after the primary. (Since then Pennsylvania’s Supreme Court has ruled that misdated postal ballots should not be counted.) A similar delay this year would conflict with the timeline for state-vote certification prescribed by federal law.
That law requires governors—in Pennsylvania’s case, Josh Shapiro, a Democrat—to submit statewide results by December 11th. These are known as “certificates of ascertainment”. To meet that date, states impose earlier deadlines on counties: in Pennsylvania, it is November 25th. Some Pennsylvania counties could miss the deadline if they slow-walk recounts, reckons Mr Jones, who predicts that Mr Schmidt may seek writs of mandamus in such cases. (In Pennsylvania recounts are automatically triggered in any race where the margin of victory is half a percentage point or less. Voters or candidates can ask courts for a recount if the margin is larger, but they typically must present evidence of fraud or error.)
Lawyers and courts, for their part, are poised to move quickly. Under rules handed down by Pennsylvania’s highest court, the timeline to appeal against a court decision has been compressed. What would normally take two or three months will happen in several days, says Ben Geffen of the Public Interest Law Centre in Philadelphia. As for claims of voter fraud, courts have had little patience for specious ones.
Certificates of ascertainment identify a state’s electors. These are representatives from the party of the winning candidate in each state, whom they pledge to vote for in the electoral college. Electors will meet in their state capitals on December 17th to fulfil this ceremonial role. On January 6th Congress counts electors’ votes and ratifies the winner. After the election in 2020 Republican lawmakers objected to the votes of Arizona and Pennsylvania; eight senators and 139 congressmen voted in favour of one or both objections. That will be harder this time: a federal law adopted in 2022 raised the threshold to lodge an objection from one member in each chamber to a fifth of members in each. Sustaining an objection requires a majority in each.
That the whole process appears so complex is a product of federalism and an archaic electoral-college system. That it faces such strain is a result of Mr Trump’s attacks. Unlike four years ago, everyone is attuned to the vulnerabilities now. “We’re not going to get caught with our pants down,” says Mr Geffen. The bigger worry, he adds, is disinformation and the distrust it sows. That problem can’t be solved by the courts. ■
Sources: The Economist
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Publish date : 2024-11-01 06:58:00
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