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No matter how one may feel about the outcome of the 2020 U.S. presidential election, one thing should be clear: the system worked as it was supposed to. Only a few months ago, COVID-19, threats of foreign interference, and presidential overreach had cast that likelihood into doubt.
What is more, in the coming days, the nation’s election system will continue to work. Election officials will obtain and certify accurate counts of the votes. Those certified counts will determine the winner of the presidential election—not the courts, and not the president.
Consider what has already been accomplished. In the midst of a pandemic, an estimated 160 million Americans, or 67 percent of eligible voters, participated. Turnout was the highest of any American election in 120 years.
Such record participation was possible only because state and local authorities made nimble adjustments to new circumstances. They increased access to mail balloting and added early voting days to decrease density in polling places. They also learned from catastrophic experiences in the primaries, when tens of thousands of voters were disenfranchised because mail ballot applications were not processed in a timely way, and poll workers canceled at the last minute, leaving polling places unable to operate. For the general election, officials hired thousands of extra workers to process and count mail ballots and work at the polls.
At the same time, election officials prepared for potential cyberattacks from hostile foreign powers. Federal authorities have seen no evidence of successful attacks against American infrastructure—but the resiliency measures put in place to recover from such attacks wound up helping states such as Georgia and Ohio continue to process votes when technical malfunctions shut their systems down.
We are exactly where we expected to be: waiting for states to finish counting all ballots and release unofficial results.
Now we are exactly where we expected to be: waiting for states to finish counting all ballots and release unofficial results. The interval is in no way surprising—in four of the last six presidential elections, including this one, the media could not project a winner with confidence before the end of Election Day.
President Donald Trump now rails against counting mail ballots after Election Day in states such as Michigan, Pennsylvania, and Wisconsin. But that timing was the choice of Republican leaders in those states. Election officials of both parties begged their state legislatures to allow them to process and count mail ballots in the weeks before Election Day, as many other states do, including Florida. The legislatures refused, so election officials are following the law by counting ballots that were mailed weeks ago today.
Workers are counting those votes with more transparency than the country has ever seen. Some jurisdictions, such as Philadelphia, offer live webcams for any member of the public to watch the process. And when the initial, unofficial counts are done, election officials will take additional steps to ensure their accuracy.
For a court to prevent the counting of ballots that were legitimately cast under a state’s laws would be exceptionally unlikely
Over the next few weeks, election officials will count every ballot, double check their math, and certify the results once they are sure they got the outcome right. Many states will undertake post-election audits and recounts. These are also a normal part of the process and an added layer of verification. Once each state official certifies the vote pursuant to the state’s rules, that state’s electoral votes will be assigned to one of the candidates.
Trump’s claim that the election has been stolen from him and that he will “go to the Supreme Court” to stop the counting is irrelevant. The president doesn’t decide whether he has won. The chief election official in each state makes that call, and this year, those officials have made clear that they will not be rushed or bullied.
Lawsuits after close elections are not uncommon. The Trump campaign has already sued in Michigan and Pennsylvania to stop the counting of some votes, but that does not mean that the courts will intervene in a way that changes any outcome. Legal experts have panned the campaign’s current efforts, concluding that they are extremely unlikely to succeed.
The role of the courts is not to decide elections. It is to enforce the rules that were already on the books before Election Day. For a court to prevent the counting of ballots that were legitimately cast under a state’s laws would be exceptionally unlikely, even for a Supreme Court as conservative as the one now in place. (In contrast to Bush v. Gore, which involved a recount, the Trump campaign is contesting the counting of ballots that haven’t even received an initial tally.) The Constitution provides that voters should be able to rely on the state rules and practices that were in place when they cast their ballots. To the extent that election officials are following those rules—as they appear to be doing in 2020—courts can do little to prevent legitimate results from being certified and the voice of the people from being heard.
Cyberattacks and COVID-19 Still Threaten the Vote, but States Are Prepared for Both