'Democracy does take time': Explaining the delay in presidential election results

Jeanna Henderson, second from right, votes at Draper City Hall in Draper on Tuesday, Nov. 3, 2020.

(Jeffrey D. Allred, KSL )

Estimated read time: 7-8 minutes

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SALT LAKE CITY — Former Vice President Joe Biden stopped short of claiming victory in the 2020 presidential election during a speech Wednesday afternoon; President Donald Trump claimed victory early Wednesday morning and his campaign began questioning vote counts in a few states.

While there have been many major developments, the biggest news outlets didn't make a projected winner in the presidential election within 24 hours after the first polls closed. All indications from Wednesday are that even if a projection comes this week, it might take weeks before the election is settled.

For starters, the Associated Press reported Wednesday that the Trump campaign filed lawsuits in three states during the day over election results and ballot-counting processes.

And despite remarks by the president, there doesn't need to be a winner called immediately and the ballots don't need to be counted in full the night of the election.

"Democracy does take time to decide so it's going to be an anxious waiting period," said Dr. Baodong Liu, a professor of political science at the University of Utah. "We'll have to, as Americans, be a little bit patient on this."

Understanding the process between Election Day and 'safe harbor'

The Associated Press projected the winner of 45 states as of Wednesday evening. That doesn't mean those 45 states are done counting ballots, it means the AP looked at results provided, trends, remaining ballots and other factors and determined that there was no path for the outcome to change.

Take Utah as an example. All major news outlets projected Trump won the Beehive State on Tuesday night but there are tens of thousands of ballots to be counted in the coming days. There's nothing wrong with states counting ballots after Election Day. What the AP and other news outlets assert with their projections is that once those ballots are counted, Trump will still maintain the lead over any other candidate.

That's where the 45 projections by the AP differ from the five states in which it hasn't made a decision. In the remaining five states, they argue that it's unclear if ballots yet to be counted will shift the outcome of a particular race. Those individual races will be called as soon as it becomes certain who the winner will be.

As this year shows, it can be a long and tedious process. Ed Carter, professor of communications at BYU, said he believes news organizations did a better job waiting to call races even if it is taking longer to figure out the winner of the presidential election. The organizations waited to make sure the math was there before making a decision and it's beneficial for results to be right, not fast.

"I felt like they were extra cautious and I think that was well done," he said. "There's a lot of damage to credibility — not just journalism organizations but the entire election process — when the election results are called prematurely or erroneously."

But even after news organizations make a projection, elections aren't official until the results are certified by state leaders. In Utah's case, that's later this month. Every state has its own voting procedures and processes but all 50 states must certify their results and settle all election disputes by the "safe harbor" deadline of Dec. 8. That's the latest it can take for a state to finalize election results.

"There is no constitutional requirement for announcing a winner on Election Day," Liu said. "Obviously voters are anxious and they want to know results for both sides."

Adding in the 2020 election, the AP has only called the presidential race half of the time since 1992. In 2000, the race wasn't even decided until a Supreme Court ruling in December that year stopped a recount of votes in Florida.

State electors will meet Dec. 14 and cast votes for the state. Congress will review the votes on Jan. 6, 2021, ahead of the Jan. 20, 2021, inauguration date.

What about the courts?

Trump spoke publicly at the White House early Wednesday morning and claimed victory. He also called on states to stop counting ballots and that he would take the election to the Supreme Court.

Since then, his campaign team filed lawsuits in Georgia, Michigan and Pennsylvania, the AP reported. That's in addition to other Republican lawsuits in Nevada and Pennsylvania. Officials from Trump's campaign also said Wednesday they would call for a recount in Wisconsin, which the Associated Press called on Wednesday in Biden's favor.

Liu said it likely means that Trump will seek to contest the election results in those states.

"President Trump has made it very clear that he has all intentions to go to the court and we'll have to be patient," he said.

Pennsylvania is the state Trump's campaign has taken the most aim against Wednesday. Justin Clark, Trump's deputy campaign manager, said the Trump campaign is "suing to stop Democrat election officials from hiding the ballot counting and processing from our Republican poll observers" and that the campaign was seeking a stop in counting "until there is meaningful transparency and Republicans can ensure all counting is done above board and by the law," the Associated Press reported.

At 88% reporting as of 6 p.m. Mountain, Trump holds a lead over Biden by a little more than 200,000 votes in the sate. It's a lead that shrank throughout the day as ballots mailed into the Keystone State are counted.

During the day, Trump claimed — without evidence — that the state and others where the election wasn't called Tuesday were attempting to swing the election against him.

"They are working hard to make up 500,000 vote advantage in Pennsylvania disappear — ASAP. Likewise, Michigan and others!" he tweeted Wednesday morning.

Another tweet read: "They are finding Biden votes all over the place — in Pennsylvania, Wisconsin, and Michigan. So bad for our Country!"

Pennsylvania Gov. Tom Wolf and Secretary of State Kathy Boockvar refuted those accusations during a press briefing Wednesday afternoon. They said they have found no evidence of ballots that simply appeared out of nowhere or any other fraud. Wolf said the lawsuit "goes against the most basic principles of our democracy" and that the state plans to "fight like hell" to count every ballot in the state.

Given that it normally takes days — even weeks — for ballots to be counted and certified, and that there is no evidence of broken laws, Liu said Trump's team faces a "very tough legal battle" ahead of him as he attempts to stop ballot counts in some states. As he pointed out, the Supreme Court's 2000 Bush v. Gore decision focused on Florida's recount process and not the initial count of ballots.

"There will be challenges about signature matching, whether there are enough ballots that can be questioned by the Trump team and whether that will change the election outcome in his favor," Liu explained. "It will go to the high court and most likely the Supreme Court to finally settle the three-day extension issue. With all those late-arriving ballots, the court has not made that final yet."

Liu said because Biden doesn't need to win Pennsylvania to win the election, Trump campaign lawyers could focus their attention on other states like Michigan — one of the states it filed a lawsuit against — and seek to reexamine votes cast there. He added it may take until December by that "safe harbor" deadline for courts to finalize rulings in cases based on the timing of the 2000 Supreme Court ruling.

Therefore, it's a process that could take some time to pan out even if there is a projected winner.

With misinformation about issues like voter fraud already in play, Carter said that voters should scrutinize claims by campaigns and make sure they align with facts.

"I think as news and information consumers, we're going to have to go against our nature and have some patience," he said. "Twitter and the rest of the news landscape we have doesn't encourage patience because we tend to have instant gratification in terms of our information-seeking behavior … we're just going to have to know that, yeah, we're probably not going to have a result for days — and even the final result might not clearly be known for longer than that."

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