As we approach another highly anticipated presidential election, one thing is clear: election night itself is no longer the grand spectacle of quick results that many remember from previous decades.
Today's election process, especially in a close race, is likely to stretch far beyond that single night. Thanks to shifts in how Americans vote and how votes are counted, combined with an environment ripe for legal challenges if former President Donald Trump loses, the nation may need to brace itself for a long wait before a winner is officially declared.
Here's why patience and preparedness are essential in the modern electoral landscape.
The Complex Vote-Counting Process
Election night has always carried the allure of suspense. For decades, Americans have stayed up late into the night watching electoral maps light up in red and blue, as anchors speculated on the outcome. The expectation of a same-night result is deeply ingrained in our culture and mindset, but in recent years, this has become an increasingly unrealistic standard.
The biggest factor in the delayed results is the sheer complexity of today's voting methods. The 2020 election saw record numbers of mail-in and absentee ballots due to the COVID-19 pandemic, and this trend has not fully subsided. Millions of voters continue to use these methods for convenience, safety, and flexibility.
While in-person votes are typically counted right away, mail-in ballots often take longer due to the extra steps involved, such as signature verification and ensuring compliance with local voting laws. In many states, these ballots can continue to be counted even after Election Day, as long as they are postmarked by that date.
In some key battleground states, laws prevent officials from starting the counting process for mail-in ballots until Election Day itself. This creates a significant backlog of votes that won't be reflected in the initial results reported throughout the night.
Given the increasing use of early and mail-in voting, the early tallies, which often favor in-person voters, may not represent the true outcome. Historically, Republicans have been more likely to vote in person, while Democrats favor mail-in ballots. This could create the illusion that one candidate is leading, only for the final result to shift dramatically as mail-in ballots are processed.
In such a close race, the perhaps absurdly small margins and the different ways votes are counted make it highly unlikely that we'll see a definitive winner declared by the end of election night. And that's just the start of the potential delays we might realistically see.
A Close Race and the "Red Mirage"
One of the phenomena that observers have come to recognize is the so-called "red mirage." This occurs when in-person votes, which tend to lean Republican, are counted and reported first. On election night, these results create an initial lead for the Republican candidate.
However, as mail-in ballots are tallied over the coming days, the lead may shrink or even flip in favor of the Democratic candidate. This exact scenario unfolded in 2020, with Biden eventually pulling ahead in several critical states after lagging behind in early results.
In a close race, the red mirage effect is likely to be pronounced, particularly in swing states with large numbers of mail-in ballots. This could lead to premature declarations of victory by Trump or his supporters, stoking claims of voter fraud if the results later shift. It's essential for the public to understand that this is not evidence of foul play but rather a consequence of the way votes are counted in different states.
The Legal Minefield: Challenges if Trump Loses
Should Trump lose in such a close race, the election may not just take a few days to resolve. It could extend for weeks, if not longer, due to a wave of legal challenges. Trump and his legal team are well-versed in contesting election outcomes; they aggressively pursued legal challenges in 2020, many of which revolved around the legitimacy of mail-in ballots. While most of those challenges were ultimately unsuccessful, they nonetheless delayed the outcome and undermined public trust in the electoral process.
We should absolutely expect a similar scenario to unfold if Trump loses again, especially by a narrow margin. His rhetoric leading up to the election has already suggested that he may not accept the result, raising concerns that baseless claims of voter fraud or election rigging will be used to cast doubt on the legitimacy of the outcome. In such an environment, even minor irregularities—such as a misplaced signature or technical glitch—could be seized upon as evidence of a broader conspiracy, launching a flurry of lawsuits.
The U.S. electoral system, fragmented as it is, gives candidates ample room to contest results at the state level. Each state has its own rules governing recounts, challenges, and certification of results, meaning that Trump could pursue legal action in multiple jurisdictions simultaneously. In a scenario where the result hinges on a few battleground states, we could see protracted legal battles similar to the Florida recount in 2000.
The Role of the Courts and Potential for a Constitutional Crisis
With Trump likely to contest unfavorable results, the courts will inevitably play a significant role in determining the election's outcome. The 2020 election saw numerous lawsuits filed in key states, with cases going all the way to the U.S. Supreme Court. However, the court repeatedly refused to intervene in overturning state-level election results.
While this suggests a precedent for judicial restraint, it's impossible to predict how courts may rule if faced with a similar set of challenges in 2024. The judiciary, particularly the Supreme Court, has become more conservative since 2020, raising questions about how potential legal challenges will be handled.
If the election is close and contested in the courts, this could lead to a nearly unprecedented delay (see Bush v. Gore) in determining the next president. If Trump refuses to concede, and the courts are seen as taking sides, the nation could be thrust into a constitutional crisis. In this scenario, the peaceful transfer of power—a cornerstone of American democracy—could be put at risk.
Managing Expectations: Patience Is Key
As Election night approaches, it is critical that voters, the media, and political leaders manage expectations, something we are just terrible at doing.
The modern election process is not designed for instant gratification, which is the totality of how most of us operate these days. Counting all votes accurately takes time, and with mail-in ballots playing an increasingly significant role, a final result on election night is unlikely. If the race is close, we should prepare for delays that stretch for days or even weeks, compounded by the potential for legal challenges if Trump contests the result.
Ultimately, the health of American democracy depends on the public's willingness to trust the process, even if it takes longer than usual. It's vital to remember that patience and transparency are the foundation of a free and fair election. The true winner, in the end, is not just one candidate or another, but the integrity of the democratic process itself.
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief strategy officer forAmplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Newsweek, Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, Abogados, Today's Esquire, TechCrunch, The Hill, BuzzFeed, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other leading publications across the globe.
The views expressed in this article the writer's own.
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