Americans should not expect the election results on election night

Alexis Tocqueville was not just one of the sharpest observers of political culture in America. He could also predict its future. In his writings about democracy in 1835, he described the election as a “moment of national crisis” for the country. Almost two centuries later, nothing strikes more fear in Washington than the mere mention of election night.

As the tale is spun, the assault on the reliability of mail voting will drive Republicans to the polls, and health conscious Democrats will send in their ballots. A recent survey backs this up. It found that 22 percent of Republicans and 72 percent of Democrats plan to use mail voting. This imbalance will provide the appearance of victory by Donald Trump on election night, which he might declare in a news conference.

However, because some states only count mailed ballots after ballots cast at the polls, that would prove illusory in the days or weeks to follow, as the certification of all ballots are accounted for. A recent model indicates that a mirage of an Electoral College landslide for Trump on election night may shift toward an official victory for Joe Biden several days later.

That dramatic change could spawn recriminations of a stolen election, for which the president has laid the foundation. Based on what we have seen of Attorney General William Barr, could he intervene with federal marshals to “preserve the integrity” for outstanding mailed ballots? Lawsuits will be filed and chaos will ensue. In this potential scenario, the national crisis will extend far beyond election night. But the situation is entirely artificial. The reality is that no election in America is ever final during election night. The issue is one of public perspective and not of system integrity.

After the debacle for 2000, Congress established the Election Assistance Commission under the Help America Vote Act. Since 2004, the group has conducted an election administration and voting survey after each federal general election. Consider the data contained in the most recent report to Congress. For 2018, over one in four votes were cast using mailed ballots. This year, over 30 million mailed ballots will probably be cast.

More than 20 states require an excuse for mailed ballots, however, more than 30 states do not require an excuse. Counties in Iowa, Maine, Florida, Indiana, and Wyoming had rates between 25 percent and 50 percent over mailed ballots in the 2018 midterm elections. Absentee ballots, of course, have been used to facilitate voting by individuals in the military or citizens living overseas, as these individuals often find themselves away from their usual address of residence in the country for the elections.

Given the pandemic, the likelihood that there will be a record number of mailed ballots sent in is overwhelming. How can we hope to have a clear picture of the election results if 25 percent or more of the ballots cast are not counted on election night? The simple answer is we will not, which is contrary to everything in our instant gratification culture. We just want to know who wins. But like the Election Assistance Commission tells us, the certification of ballots never really occurs on election night.

According to the Election Assistance Commission, about a third of states all across the country require mailed ballots to be postmarked by election day, while more than half require mailed ballots to be received by election day. So in other words, around a third of states take and count the mailed ballots postmarked on or before election day, regardless of when they are received, the most notable of which happens to be California.

This means that democracy has always needed a few days of patience. As the election guidelines provide, the important purpose of the certification is to account for all the ballots cast and to ensure that all the valid ballots are included in the official results. Such a great objective runs completely counter to our current tribal “win at all costs” political culture. It turns out patience, however, is the essence of democracy in America.

Chris Gagin is an attorney and adviser to Republicans for the Rule of Law.