Jurisprudence

How to Survive Election Night

A line of people outside wearing masks waiting to vote
Early voting in Milwaukee on Tuesday. Kamil Krzaczynski/Getty Images

This year’s election season began weeks ago as more than 80 million voters began receiving their ballots by mail. It continues now, less than two weeks before Nov. 3, with more than 40 million votes already cast. And it is unlikely to end on election night, when the vote totals begin to be released to the public. Voters, campaigns, and the media all need to adjust their expectations to this new reality.

Americans who watch the returns on Nov. 3 need to be prepared for a different type of viewing experience than in the past. More mail ballots may mean slower counting in some states. More importantly, in states that count in-person ballots separately from mail ballots, reported tallies will be more variable as successive batches of ballots are counted and reported.

Media outlets have always toted up the raw election returns as they have been released, warning against reading too much into the early numbers. Such warnings take on greater urgency in 2020. If, as some have predicted, Americans go to bed with President Donald Trump leading and then wake up to learn he is losing, cries of fraud will follow. Those cries may be inevitable given the nature of this race, but the media can give them less ammunition by changing how they communicate with the public about vote counting.

Americans need to be prepared for the possibility of experiencing a roller coaster ride as the votes are counted, especially in the first couple of hours after the polls close. Counties will be reporting partial counts for longer than is typical. At the same time, analysts will be looking for glimpses of solid information about where the election is headed, based on the results from counties that do complete their counts quickly.

Panning the election returns for nuggets of complete information will be critical, if the inevitable initial uncertainty about the vote count is to be kept from sowing longer-term doubts. Americans have become aware of the possibility of a red mirage giving way to a blue shift, caused by Trump-dominated Election Day ballots being counted first, followed by Biden-dominated mail ballots being counted later. Some of these expectations have been developed by relying on cartoon images of how ballots are counted.

With the election night landscape changing for 2020, we offer the following seven pointers, aimed at the public and media alike, for an informed, and informative, viewing of the election results.

1. Election night vote reports are unofficial. No state finishes counting ballots on Election Day. Even if there were no absentee ballots to be counted, every state has laws to ensure that mistakes were not made when the votes were tallied and reported to the local election office. Local election authorities make sure all the precincts and centrally counted mail ballots have been accounted for. Then, the states have to make sure that the local governments got it right. The process of checking the math is called the canvass. According to the National Association of Secretaries of State, the period to canvass the vote ranges from a couple of days in Delaware and New Hampshire to around a month in states such as California, Michigan, New York, and Texas. The initial tabulation may lead the media to declare a winner, but the canvass is what produces a certified victor.

2. Be aware of where the reported ballots have come from, especially right after the polls close. Despite all the worry that the surge of mail ballots in 2020 will slow down the counting, most states with a lot of mail ballots have historically been able to count almost all of them on election night. Even so, ballots from different parts of any given state aren’t all counted at the same time. In most states, the smaller and more rural counties will get done counting first. Because these are the most conservative parts of the country, the early returns should look good for Donald Trump. As the night goes on, the larger, more urban—and more Democratic—parts of most states will begin reporting. That should be good for Joe Biden. What matters is not the order in which votes are counted, but the fact that all the votes are counted.

3. Media outlets should report where vote counts have been completed and how those areas have voted in the past. Although some counties will count their ballots faster than others, we can still anticipate how Trump stands versus Biden based on how well Trump performs compared with 2016. The ebbs and flows of electoral fortunes are surprisingly consistent across geographical units from one election to the next. If by 10 p.m. on election night the counties that have completed their vote counts show Trump ahead or behind where he was in 2016 in those same counties, that will be strong evidence about where the nationwide count of ballots is heading.

4. Media outlets should report on the various streams that feed into the vote count. The national pivot to greater mail balloting means that past vote-counting patterns will be disrupted in 2020. For many states, ballots cast on Election Day and tabulated immediately after the polls close will no longer be the dominant source of votes. And in most states, ballots cast by mail will not be counted in precincts but in central election offices, under the direction of a county or municipal election director. Votes will come from a variety of sources—absentee, in person early, Election Day polling places—all legitimate and reflective of the different ways Americans will be voting this year. Because it is likely that Election Day votes will favor Trump and mail ballots will favor Biden, it will be important for news outlets to let readers know where votes are coming from and how many remain to be counted.

5. As results begin to come in, media outlets should communicate the number of expected votes in each state, in addition to the number of votes already counted. With most votes likely to be cast by mail this year, the “percentage of precincts reporting” statistic has become a relic of elections past. The media should not report it at all; it is misleading for any number of reasons, including the fact that some counties relegate all of their absentee ballots to a single “absentee ballot precinct.” A more meaningful statistic is the percentage of expected turnout. This statistic was reported by the New York Times in 2016, although not prominently enough. If media outlets insist on reporting the older statistic, it should be clearly stated that it refers only to votes counted on Election Day, in most cases, and that other statistics more accurately describe how many votes remain to be counted.

6. National media sources should banish the phrase “Candidate X has won State Y” until votes have been certified. (We’re looking at you, Associated Press.) The media don’t declare winners; election authorities do. Yet many media outlets, led by the election night reporting service of the Associated Press, insist on stating, without qualification, that certain candidates have won elections, sometimes within seconds of the polls being closed. News agencies, starting with the AP, should accurately report what they know. They often know that the facts—preliminary election returns and exit polls—point toward a candidate being a likely winner or a projected winner. But to declare a “winner” without placing an adjective before the noun is misinformation, and needs to stop.

7. National media outlets should publish ahead of Election Day a description of how they intend to report on election results and the criteria they use to “declare” states. Ahead of election night, the national media should be transparent in how they will project the winner of each race. They should follow the lead of scientists who preregister their research designs with neutral parties and news organizations that publish election forecasts, such as the Economist, posting their software code for all to see. As much as the network decision desks might pride themselves on their trade secrets and secret sauces, the stakes are too high in this election to keep the ingredients for calling states out of public view and away from scientific analysis. Moreover, any formula that cannot be explained by resort to official and public statistics should be abandoned.

The national media outlets have a delicate balancing act to perform during election season. They need to communicate what they know without overstating their certainty—lest they have to walk back prior claims—or understating what the facts imply—lest they create an information void in which the campaigns and their most vocal supporters manipulate the uncertain information environment. Members of the public have a role as well. They need not just to be patient, but to be informed consumers of the election reports they will watch once the polls close. The degree to which both sides of this equation fulfill their responsibilities will help determine how well the nation’s strained constitutional institutions can handle the inevitable controversies that emerge after Election Day.