Special Washington Update: 2020 Election Day Considerations

No one knows what election night 2020 will bring us, but it’s safe to say that it will be an election like no other. The COVID-19 pandemic has accelerated existing trends in most states toward early in-person voting and voting by mail. A record number of votes already have been cast before election day, meaning fewer people will vote in person on election day, continuing a trend that we have seen over the last decade as most states now offer more early voting opportunities.

The record turnout brings an “X factor” to election night. There will be millions of new voters. Who are they and who do they support? Did polling reflect and accurately report this voting surge? This will be an issue that we will be following as the results come in.

Still, one thing won’t change this election: the winner will be determined by the results of just a handful of states. So, as we watch the returns on election night from our favorite chairs, we want to pay the most attention to these states and their specific rules for counting mail ballots and declaring a winner. 

We outline below how election night might unfold with a potential timeline of key developments that we believe will determine the final outcome.

Before we get into how election night will unfold, it’s worth considering the 2016 results to see how the candidates look at the map and try to craft a winning strategy. The pathways to victory are relatively straightforward and are really a mathematical exercise in how to accumulate the required 270 electoral votes to win.

The Trump Roadmap to 270.

Of course, President Trump will win reelection if he is able to once again win the same 30 states he won in 2016. He has a small cushion of 36 electoral votes that would allow him to win even if he gives up some of those states. Wisconsin (10 electoral votes) and Michigan (16) are two states in which he is currently down in the polls. If he loses those two, he would still need to win Pennsylvania (20) and Arizona (11), where polls also show he is losing but by a smaller margin. He also would need to hang on to both Florida (29) and North Carolina (15), which are currently toss-ups. Trump would like to flip a few states – namely Nevada (6), Minnesota (10) and New Hampshire (4) – to compensate for potential losses in states that he won in 2016, but prospects for victories in these states appear to be fading.

Note: We expect the states colored blue to be won by former Vice President Biden and the states colored red to be won by President Trump. The blue states total 233 electoral votes, while the red states total 126 electoral votes. More competitive “swing” states are colored brown.

The Biden Roadmap to 270.

Biden wants to retain the states won by Clinton in 2016 (a total of 233 electoral votes) and add a combination of states with at least 38 electoral votes. If he wins the states mentioned above where he is currently out-polling Trump (WI, MI, PA, AZ), he would clearly have enough to win. Another path to victory would be to win Florida (29) and one of the previously mentioned swing states won by Trump in 2016. Biden has also targeted traditionally red states like Texas (38) and Georgia (16). A win in either would blow the race open. Clearly, Biden has more pathways to win the electoral college if current polling is accurate

Note: States colored in red below were won by Trump in 2016, and we consider them safely Republican again this year. Those in blue were won by Clinton and are considered safely Democratic this year. Those in brown were also won by Trump but are competitive this year. All times below are ET (not local times).

8:00 pm ET:

Polls will close on much of the east coast and part of the Midwest. We can expect the first early election results to be available shortly after this time. Results will be reported as they become available, but most will not be final. Most states in this group will not be competitive and will award their electoral votes predictably to one candidate or the other. Five very important swing states -- Florida (29), Ohio (18), Georgia (16), North Carolina (15) and Pennsylvania (20) -- are among the states that will close their polls at this time, though we don’t expect to have final results for any of them right away. PA’s final result may not be known for days after the election due in part to its restrictive mail ballot counting law, which prevents officials from counting ballots before election day. A final result in NC may also be delayed given that it accepts mail ballots from residents up to nine days after election day as long as they are postmarked no later than election day. FL and GA should be in positions to announce their winners on election night since both begin counting mail ballots well ahead of election day. Trump’s wins in FL and GA in 2016 were called close to 11 pm ET, and we could see announcements again around this time this year. An important note here is that if Biden wins either FL or GA, we think the race is all but over. There is only a very, very narrow path for Trump to win if he cannot win FL or GA. We feel similarly strong about NC. If Biden wins NC but loses in FL and GA, Trump still faces a steep uphill climb. He would have to win a state that he is polling behind in, such as Michigan, to make up for those votes (and a win in PA becomes even more of a necessity).

9:00 pm ET:

Polls will close in an additional 15 states. In total, just under 80% of states will have closed their polls by this time. Arizona (11), Michigan (16) and Wisconsin (11) are key swing states that close at this time. None of those three are likely to have final results available by election day evening. However, AZ is likely to have the most complete results available as it begins counting its mail-in ballots two weeks before election day. MI and WI, with their more restrictive mail-in ballot counting procedures, may not produce definitive results until a day or two later. If Trump wins in FL, GA and NC, then AZ will become the center of attention. Trump won the state in 2016, and it is basically a must-win for him this year. While wins for Biden in MI and WI are expected, AZ will be more competitive. If Biden is able to flip AZ in addition to MI and WI, he would have 269 electoral votes and be at the threshold of victory. 

10:00 pm ET: 

 By this time, we will be learning of accumulating vote counts in many other states where the polls closed earlier. At 11 pm ET, the polls for four other states will close, which will signal the end of voting for the continental United States. Hawaii and Alaska will close at midnight and 1 am (both ET) respectively. 

Iowa, which has its polls closing at 10 pm ET, is the most important of all of these late states, and this is also a state that Trump has to win. He won it in 2016 by nearly 10%, but the polls currently show a very close race. A Biden win would force Trump to make up ground elsewhere. In the end, Iowa may not matter so much if developments in other states are instructive. However, if Trump notches wins on election night in states he won in 2016, Iowa will be important. 

By a little after 11 pm ET, the results should be called in most of the safe states, though some states still will be counting mail votes after the election. Both candidates at this point should be approaching their electoral college vote floors, with Trump likely having secured around 120 electoral votes and Biden around 200 electoral votes once California is called. Some swing states also may be called by this time if either candidate has a sufficient enough margin to make the final outcome clear. 

At this time, FL will have reported a significant number of its votes, including a large portion of the mail-in ballots. The early count in Florida will likely skew toward Democrats, who have been encouraged by Biden to vote early. As the night proceeds, however, we can expect the results to trend more Republican as in-person voting results are reported. While Florida is unlikely to be called one way or the other at this point, we may have a good idea of how it will be called if the election appears to be a strong win for either candidate. 

If the race is going to be a strong win for either candidate, we will likely know at this point, although the result won’t be final. Arizona and Florida will have reported a majority of their votes, including mail-in ballots, while Michigan, North Carolina, Pennsylvania and Wisconsin will have reported a large portion of their votes. Many mail ballots will still be uncounted in those states, however.

The House and Senate.

These races often play second fiddle to the presidential race, but they shouldn’t. Their outcomes will determine what policy agendas can pass the House and Senate next year, regardless of who is sitting in the Oval Office. Our bottoms lines are that (1) Democrats will likely expand their current majority (232-197) in the House by a handful of seats, and (2) the Senate is likely to flip to Democratic control with a Biden win. If Trump wins, Republicans will likely win enough close races to keep a majority. With Republicans likely to pick up a seat in Alabama, Democrats would need to flip four seats to capture a majority if Biden wins. Seats in Maine, Colorado and Arizona are their best opportunities though Democrats also have good chances in North Carolina and Iowa. Close races in South Carolina, Montana, and Georgia (two seats) present further opportunities for Democratic pick-ups. Neither party is likely to match or exceed the 53-47 majority that Republicans have today. Regardless of who wins the Senate, it will be a slim majority. 

Election Aftermath. 

Many analysts have predicted chaos, confusion, anxiety and other social challenges if the final vote tally is not clear and prompt. We think this is over-stated. We believe most Americans will retire on election day evening with a sense of who won, though final results will not be available yet. Final vote counting over the next few days will likely confirm the anticipated result. The earth will keep rotating and life will go on. There will be protests, but this shouldn’t be surprising. Protests are commonplace in America, and this will be no different.

Legal Challenges.

Both campaigns are anticipating legal challenges and are preparing their own strategies on what voting activities might be distorted or improper. We should expect a challenge of some sort. How serious it will be remains to be seen. The closer the race, the more the voting practices in the competitive states will be scrutinized. This is where legal challenges may arise. A few states still will be counting mail ballots after the election, and any legal challenge would prolong the process of declaring an official winner. Allegations of fraud and questionable rejection of too many mail ballots are likely legal challenges. There also may be appeals to the Supreme Court over the legality of changes made to voting by mail in certain states. Without knowing what the challenges would be and what evidence may support them, it’s hard to know what impact they will have on the race’soutcome. So, we will wait until that time and opine then.

Re-counts?

Many states have re-count laws if the vote count is very close. They are triggered if theinitial election outcome meets certain thresholds. 

December 14 Hard Deadline.

This is the hard deadline for a resolution to any state’s assignment of its electoral votes. Federal law stipulates that on the second Monday after the second Wednesday in December, all states (plus Washington, DC) will formally cast their votes for president and vice president. Any legal challenge or any other complication with the vote count must be resolved by this date.

Electoral College Tie?

If Biden flips AZ, MI and WI (and the electoral map otherwise stays the same), Trump and Biden would tie for 269 electoral votes. In that scenario (or any other where neither candidate is able to amass the necessary 270 electoral votes to win), the presidential election would be determined by the newly-elected House early next year, with each state delegation getting one vote. While Democrats control the House, Republicans actually currently have a majority of state delegations (26 to 23), with Pennsylvania evenly split between Democrats and Republicans). Meanwhile, the Senate would choose the vice president. This split opens up the possibility of a having, for example, a President Trump and a Vice President Harris. Imagine that. We said in the very first sentence of this publication that this election may be like no other!