The unprecedented use of mail-in balloting in this election due to the COVID-19 pandemic led to delays in the processing of ballots in key states. While millions of ballots were cast prior to election day, election officials in many states were not permitted to begin processing mail-in ballots until the days before election day, and in some states, until election day itself. This slowed the counting process. As the vote counting nears its end, the legal battles are just beginning. Legal challenges in very close elections are common, and despite President Trump’s aggressive legal strategy, it is unlikely that any court decision will exclude enough votes to reverse President-elect Biden’s victory.
The Trump Campaign has already filed lawsuits in Arizona, Georgia, Michigan, and Pennsylvania to stop counting ballots while President Trump was ahead, or claiming that the counting process was not sufficiently transparent.
President Trump has also vowed to seek a recount in Wisconsin, where the ballots may be recounted if the margin is less than 1%. There will also be an automatic recount in Georgia, where President-elect Biden leads by just under 10,000 votes. As of today, Arizona, Pennsylvania, Nevada, are not close enough to expect recounts.
There are three points to emphasize about these challenges.
First, vote counting is a process. Although we are accustomed to learning election results on election night, it always takes days and occasionally even weeks, for election officials to count and certify official results. Given the unique challenges of processing and counting an unusually high volume of mail-in votes during a pandemic, delays are a sign of the states’ efforts to get this right and not a sign of dysfunction.
Second, recounts are common in close races. In most states, the threshold margin is one-half of one percent. However, recounts are unlikely to change the outcome. For context, in Wisconsin in 2016, where President Trump defeated Hillary Clinton by about 23,000 votes, a statewide recount only resulted in a shift of 131 votes—not nearly enough to flip the state. Recounts rarely change more than a few dozen votes, nowhere near the thousands or tens of thousands needed to affect the outcome.
Third, although the President has vowed to aggressively fight the results in the courts, we have not yet seen the Trump Campaign advance the sorts of legal claims that would lead to courts invalidating the tens of thousands of ballots needed to change the outcome. While President Trump has the legal right to go to court over the election results, so far, he has shown no serious evidence of widespread fraud, or any other claims that would invalidate the tens of thousands of ballots he would need to win. In fact, 10 of his lawsuits have already been dismissed or denied since Election Day.
While this could all change if the Trump Campaign brings forward concrete evidence of fraud or other irregularities, the Biden Campaign has emphasized publicly they are prepared for these cases. President-elect Biden will now face them from a position of defending a victory, rather than seeking to overturn the results.
Additionally, President Trump has not conceded defeat, and as I mentioned, his various court challenges are ongoing. We expect that even after he has exhausted the legal options, he will continue to assert that the election was “stolen.”
Typically, once an apparent winner of the election is declared, the incoming Administration would fairly quickly receive access to government resources to support the transition, including office space, key documents, agency officials. As of this morning, the Trump Administration has not made these resources available to the Biden team.
But the Biden Transition has been planning for such a “hostile transition” for months, and can continue to prepare for staffing a new Administration, making policy by executive action where necessary, and implementing a legislative agenda, even without the formal support of the Trump Administration. These preparations will continue even as any election contests unfold. For example, we expect agency review teams to begin work this week.
Moreover, even if the White House and senior political appointees remain publicly hostile toward the Transition, we would expect career officials at the working level within the agencies to cooperate fully with the President-elect’s team. Ultimately, even with a hostile transition, President Trump will leave office when his term ends at noon on January 20, 2021, regardless of whether he ever officially concedes defeat.