What happens in the days after the American election

Few Americans gave much thought to the mechanics of their election until Trump and his lawyers furiously tried to overturn the loss to Biden. At every opportunity they tried to undermine what had long been considered a pro-forma process. Trump allies have alleged voter fraud in bunkum lawsuits, unsuccessfully strong-armed local and state officials into altering the accounts and tried and failed to convince Mike Pence, then Trump’s vice president, to block Congress from confirming the result. That day, Trump supporters ransacked the Capitol.

If this year’s election is as close as the polls suggest, expect another busy few weeks between November 5th and January 6th. Mr Trump will likely declare victory before the news networks call the race, sparking acrimony and misinformation. The fact that Ms Harris is likely to do better among voters who post their ballots means her fortunes are likely to improve as the count progresses, as postal vote counting is typically slower. This happened in 2020 in Pennsylvania, where Mr. Trump’s early lead turned into defeat by just over 80,000 votes, fueling conspiracy theories about stealing the election. Mr Schmidt, then a Philadelphia local commissioner, was targeted by Mr Trump on Twitter for refusing to investigate a “mountain of corruption”. Threats from MAGA the fans followed.

In 2020, it took four days for news outlets to call the state, which provided enough electoral college votes for Mr. Biden to win. The delay resulted in part from Pennsylvania preventing officials from pre-processing mail-in ballots before Election Day. They cannot remove ballots from envelopes, verify signatures, or prepare ballots for automatic counting. (Wisconsin is the only other swing state to similarly restrict preprocessing.) In 2020, amid the pandemic, 39 percent of ballots were mailed in Pennsylvania. The odds may not be so high this time.

In Pennsylvania, the counting — or “canvas” — of mail-in ballots begins at 7 a.m. on Election Day. Most counties in the state, because they receive funding from the state, are required to continue until the work is done, without a break. In order to be counted, postal votes must be received by the polls close at 8:00 PM on Election Day.

States write laws and set parameters for administering elections, but counties do most of the work. They’re like fiefdoms, says John Jones, a former federal judge in Pennsylvania; America has over 3,000 of them. County commissioners select polling places, recruit staff, and supervise polling. Then they report their tallies to state officials, who add them all up and certify the result at the state level. Certification means attesting to the accuracy and completeness of the 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 top state jobs in Arizona, Pennsylvania and even Republican swing states. As a result, state officials are unlikely to block certification if Mr. Trump loses. But some unscrupulous county officials could refuse the certification and thus hinder the rest of the process. Their job is “ministerial,” not discretionary, the courts have ruled. They don’t have the authority to investigate fraud or error — under Pennsylvania law, that is, for prosecutors and courts. In October, a Georgia state judge ruled that county election boards could not “play investigator, prosecutor, jury and judge” if they suspected fraud and that they had to certify once the count was complete.

However, even unsuccessful efforts can mean long delays. In Pennsylvania, during the 2022 primary, three Republican-majority county boards refused to certify the results because they ruled that undated mail-in ballots should not be counted, contrary to state recommendations. Courts ordered councils to include those ballots, and they finally complied — more than three months after the primary. (The Pennsylvania Supreme Court has since ruled that undated mail-in ballots should not be counted.) A similar delay this year would conflict with the state ballot certification deadline set by federal law.

That law requires governors — in Pennsylvania’s case, Josh Shapiro, a Democrat — to report statewide results by Dec. 11. These are known as “certificates of finding”. To meet that date, states are imposing earlier deadlines on counties: in Pennsylvania, it’s November 25. Some Pennsylvania counties could miss the deadline if they are slow to admit, says Mr. Jones, who predicts that Mr. Schmidt could 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 the courts for a recount if the margin is larger, but usually must show evidence of fraud or error.)

Lawyers and courts, in turn, are ready to move quickly. Under rules issued by Pennsylvania’s highest court, the time to appeal a court decision has been compressed. What would normally take two or three months will happen in days, says Ben Geffen of the Public Interest Law Center in Philadelphia. As for claims of voter fraud, the courts have had little patience for the specious.

Verification certificates identify a state’s voters. They are representatives of the party of the winning candidate in each state, whom they pledge to vote for in the electoral college. Voters will meet in their state capitals on December 17 to fulfill this ceremonial role. On January 6, Congress counts the electoral votes and ratifies the winner. After the 2020 election, Republican lawmakers opposed the votes in Arizona and Pennsylvania; eight senators and 139 congressmen voted in favor of one or both objections. It will be harder this time: A federal law passed in 2022 raised the threshold for filing an objection from one member of each chamber to one-fifth of the members of each chamber. Sustaining an objection requires a majority in each.

The fact that the whole process seems so complex is a product of federalism and an archaic electoral-collegial system. That they face such tension is a result of Mr. Trump’s attacks. Unlike four years ago, everyone is now on board with vulnerabilities. “We’re not going to be caught with our pants down,” says Mr. Geffen. The bigger concern, he adds, is misinformation and the mistrust it sows. This issue cannot be resolved by the courts. ■

Sources: The Economist