In October, three African countries – Guinea, Cote d’Ivoire, and Tanzania – conducted elections that were marred by administrative chaos, acts of violence, contested vote counts, allegations of fraud, and ultimately, the unwillingness of the losing party to concede. For election experts who follow such developments, the oft-heard concern was that the Nov. 3 election in the United States might follow a similar pattern.
Indeed, for months, there was an informal competition to project the most nightmarish election scenarios. What happens if there are not enough polling officials because of the pandemic? Does the post office have the capacity to handle the expected crush of mail-in ballots? Are armed militias likely to show up at polling sites to intimidate voters? What happens if violence shuts down polling sites? Will mail-in ballots be rejected for failure to comply with legal requirements? Will the television networks have the patience to wait for all ballots to be counted before projecting results?
To the relief of all believers in democracy, the United States election was conducted with few of the anticipated problems – President Trump aside. More than 65 million people cast mail-in ballots and another 35 million voted early in person. Voter turnout during a raging pandemic was approximately 67 percent, the highest in more than 100 years.
Election officials learned well the lessons of a chaotic primary season and delivered an efficient Election Day. Very few irregularities or acts of intimidation were reported, and the counting process for in-person votes at individuals precincts was completed in an expeditious and transparent manner.
As expected, the counting on mail-in ballots required more time than usual. States that permitted the processing of mail-in ballots prior to Election Day reported their absentee returns soon after the polls closed. States that were not authorized to begin processing until Election Day – most notably Pennsylvania – were still counting mail-in ballots five days after the election. However, in all cases, the process was conducted in a transparent manner, with party observers present and livestreaming available for those with the interest and patience to watch.
The television networks in previous elections have been guilty of competing to be the first to project a winner. This year, having been apprised of the unique nature of this election, they exhibited remarkable restraint in waiting until the requisite number of ballots were counted to ensure that their projections were accurate. In some states, the small differences between the two major presidential candidates delayed the projection until nearly all the ballots – mail-in, in-person early, Election Day, and provisional – had been counted.
We are now entering a fraught period. Joe Biden has been projected as the winner by all major news outlets, and while Donald Trump has allowed the transition to go ahead, he is still refusing to acknowledge defeat. Under U.S. law, the results are not finalized until they are certified by state officials, regardless of what the networks project. And as international observers often note in their postelection statements, a candidate claiming that fraud has been committed has the right to present his or her claims to the authorized body for adjudication.
Both federal and state laws prescribe the time frame for challenging election results and for resolving such claims. However, to achieve success in the courts, an aggrieved party must present clear evidence of irregularities and demonstrate that these irregularities affected the margin of victory in a given state. Otherwise, the challenges should be expeditiously dismissed, as has already happened with several cases that the Trump campaign has filed. Though there have been a number of worrying incidents in which those aligned to President Trump appear to have considered not certifying Biden’s victory in their locality, so far they have ultimately done their democratic duty.
The extended period between Election Day and the constitutionally prescribed inauguration date of Jan. 20 is designed to provide an incoming administration with time to prepare for the responsibilities of governing beginning on Inauguration Day.
The Presidential Transition Act outlines the material resources and access to information that the federal government must provide to the president-elect. The administrator of the General Services Administration is responsible for determining when there is a president-elect; in doing so, she must balance the congressional intent to ensure an efficient transition with a recognition that the electoral process does not end with projections issued by the networks. Absent legal challenges, a combination of network projections and a concession by the losing candidate usually provides a sufficient basis for such a determination.
Given the circumstances of the 2020 election and the need for an orderly transition in these crisis times, the GSA administrator should assess the viability of Trump’s legal challenges against the strong presumption that, based on the results already reported, Biden is the election winner and is entitled to the support authorized in the legislation. She does not have to wait, as some are suggesting, until state officials certify the results in their states later this month or the designated electors to the Electoral College meet in mid-December. Indeed, it would be a severe disservice to the country if she delayed her determination for too long a period.
Notwithstanding the concerns of the many Cassandras, key United States institutions – including a decentralized election administration, an independent judiciary, a free media, and a mobilized civil society – were up to the task of protecting the country’s democracy. The lessons for countries where elections result in violence or political turmoil are obvious: independent democratic institutions are central to successfully managing electoral controversies.
Larry Garber is an independent election expert; he is serving as a member of the National Task Force on Election Crises and is a senior member of the Carter Center’s U.S. Election Expert Study Team.