Jurisprudence

What Happens in November if One Side Doesn’t Accept the Election Results?

How the coronavirus could contribute to a 2020 election meltdown.

A woman wearing a surgical mask and gloves exits the polling place. A "VOTE" sign hangs on the wall next to the doors.
A polling place in Miami on primary day, March 17. Eva Marie Uzcategui/Getty Images

The November 2020 presidential election won’t be run perfectly—we have never had a perfect election conducted in this country or elsewhere—but the unique challenges posed by the coronavirus pandemic add special stress to what was already going to be a difficult election and underline the need to ensure that it is run in a way that maximizes both voter access and integrity. Even before the current crisis, I had been deeply concerned about the chances of a 2020 “election meltdown,” in which the 47 percent or more of the population on the losing side would not accept the results as legitimate. I am even more worried now because of the changes and shortcuts that will be necessary to successfully run November’s tally amid a pandemic. Here is what we need to do to minimize the chances of a November meltdown.

The pre-COVID-19 status of Americans’ trust in elections was already troubling. Recent polling showed that many Americans worried that votes would not be fairly and accurately counted, with potential foreign interference a pressing concern. As I explained in my recent book, Election Meltdown, four factors contribute to declining trust in elections. First, Republican legislatures have passed voter ID and other laws making it harder to register and vote, but the kind of voter fraud these laws are supposedly intended to prevent is so small that Democrats can only conclude that these laws were passed to shrink the field of likely Democratic voters. The voter fraud/voter suppression framing of American election administration convinces everyone that the other side is trying to cheat to win. Second, small pockets of election administrator incompetence get outsize attention during close elections. Political actors like President Donald Trump, meanwhile, seek to capitalize on mistakes of incompetent election administrators like Broward County, Florida’s Brenda Snipes—who resigned after the 2018 midterm election following a series of blunders—and portray these failures as attempts to rig or steal an election. Third, dirty tricks continue to proliferate in American elections. Finally, partisans have ratcheted up the rhetoric of “stolen” or “rigged” elections, almost always without any proof and often deflecting from real problems with voter access and integrity.

The current public health crisis is only likely to increase the strains on voter confidence. In its massive economic aid package that was signed into law on Friday, Congress is providing only $400 million for states to deal with expected increased costs associated with running the election during the outbreak, a woefully inadequate amount given the Brennan Center for Justice’s $2 billion estimate for additional needs. Congress rejected Democrats’ attempts to require states to offer a no-excuse vote-by-mail option in November for the one-third of the states that still require voters to offer an excuse to vote from home.

The lack of federal funding may negatively affect voter confidence in a few ways. First, if the pandemic is still limiting our ability to move freely about society in the fall, the amount of absentee balloting is going to explode whether Congress mandates an expansion of absentee balloting or not. We have already seen the huge growth in absentee ballot requests for Wisconsin’s April 7 primary, along with legal challenges surrounding the state’s voter ID law. Vote by mail is an important step in ensuring that even if the virus keeps people away from physical polling places, millions of Americans will have a means of avoiding disenfranchisement. But it is not perfect.

Vote-by-mail ballots are more likely to be rejected than other ballots because of problems like signature mismatches. We also know that rejection rates for signature mismatches can disproportionately affect minority voters. Some states do not alert a voter whose ballot has been rejected about the rejection, failing to give the voter a chance to cure something like a purported signature mismatch. Signature matching is also a notoriously subjective endeavor. Even before the coronavirus pandemic, the issue has led to litigation over whether those voters are being unconstitutionally denied their right to vote. Some disabled voters, meanwhile, may need to vote at physical polling places because they lack the physical ability to fill out a ballot at home. These voters too risk disenfranchisement. And in the 11 states without online voter registration, even registering to vote in time for the election may pose a great challenge if government offices are closed or maintaining only limited hours.

Further, some jurisdictions are going to be overwhelmed with the number of absentee ballots to process, whether because of the lack of scanners or workers. There will be stories of notoriously bad election administration in November because we have some election offices in the country with poor leadership and inadequate resources—problems that will only be exacerbated by the stress of conducting an election under these conditions. Those stories will fit into a “stolen election” narrative, one likely egged on by Russians or others seeking to sow discord and undermine faith in our election. This will be on top of potential virus-related misinformation aimed at particular communities warning them against showing up to vote or telling them to vote at the wrong place or time.

Even worse, the need to process millions more absentee ballots without adequate funds and training means November’s election results could well be delayed. This is especially worrying in Detroit and Philadelphia because both cities have a history of poor election administration, and both of their states, Michigan and Pennsylvania, have recently adopted no-excuse absentee balloting—and both states play a critical role in the outcome of the Electoral College that determines the presidency. Delay is going to lead to cries of fraud, when in fact good election administration—especially when dealing with absentee ballots—takes time.

What if Trump is ahead in Michigan and Pennsylvania on election night and he declares victory, but after millions of absentee ballots are processed a week or so later Biden is declared the winner in those states and wins the election? Will Republicans believe Trump if he claimed the later count was the result of fraud, despite all evidence to the contrary?

Meanwhile, when election fraud—as rare as it is—does actually happen in the United States, about a quarter of the time it is because of absentee ballot tampering. In some states it is legal for people to collect an unlimited number of completed absentee ballots from other voters, and that raises the danger not only of fraud but of folks on the wrong side of an election believing that fraud is happening. The kind of fraud that led the North Carolina state elections board to require a do-over of the 2018 race for the state’s 9th Congressional District involved the collection and tampering of such absentee ballots. Already we are seeing the usual suspects on the right raise concerns that voter fraud will be rampant with increased vote by mail. Last week, for instance, Republican Rep. Thomas Massie (the same guy who objected to a voice vote on the federal coronavirus bill and made a majority of House members return to D.C. for a vote) tweeted, “Universal vote by mail would be the end of our republic as we know it.”

So what can we do about this greater potential for a meltdown in November? The two keys are resources and state-mandated improvements in administration. We know that the election is going to be much more expensive, and we know where many of the problems are.

If Congress is not going to step up, states need to find money in their already strained budgets to make sure that election administration is adequately funded. States need to assert more authority over local jurisdictions to manage the expected surge in absentee balloting, the added expenses of running polling places consistent with stringent health requirements, and other potential threats to the election like cyberattacks. Too much local control in election administration is a recipe for disaster because in a close election everyone will look at the small number of places where things failed, not the vast majority of places that manage to conduct a single election well. State legislatures need to give state election administrators more power over poorly performing election offices. States also need to advertise and impose heavy penalties on those who would tamper with absentee ballots, especially if states send absentee ballots to all registered voters (some of whom may have moved or died).

Already the stress on election administrators in 2020 was high. The virus is likely to be the greatest challenge yet. But we need to ensure that as many people as possible who are on the losing end of the 2020 election believe that it was conducted fairly, and agree that the proper reaction to an election loss is to regroup and agree to fight again for public support in the next election cycle. The health of our democracy, even during the time of the coronavirus, depends on it.

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