With less than three weeks to go until election day. A lot of ink has been spilled over how state laws on the receipt and counting of absentee/mail-in ballots could delay knowing who won the presidential election.  But it could take even longer to know who will control the U.S. Senate.

One of the reasons is, of course, that the same delay in counting votes for the Presidential election could also delay counting the votes for the Senate elections.  However, given where the seats are and the current polling average, I expect that most Senate seats will be called on election night.  And it is possible that one party or the other will have a good enough night to get to 51 seats by midnight.

But there is a real chance that control of the Senate will come down to three races.  (At the very least, these three races will impact how comfortable the majority is.  Both parties have a handful of Senators who will occasionally split on a key vote.  Needless to say a 50-50 Senate with Vice-President Harris only voting in the case of a tie is going to be less likely to pass major legislation than a 53-47 Senate especially if the filibuster finally goes the way of the dodo.)  And in all three races, the election may not be over on election night.

The race that will probably extend past election night but is guaranteed to be finished by mid-November is the Maine Senate race.  As we have discussed in other contexts, Maine has ranked-choice voting (a/k/a instant runoff voting).   The key fact of ranked-choice voting is that if nobody gets 50% of the first preferences of voters, the candidate in last place is eliminated and the votes for that candidate are redistributed to whomever those voters ranked second.  In 2019, I thought that ranked-choice might help Senator Collins based on hypothetical candidates.  Based on the candidates that actually filed, I think that it is highly unlikely that either candidate will have enough second choice votes to overtake the other unless the race is very, very close.  And there is always a chance that, despite the other two candidates running, either Sara Gideon or Senator Collins could get to 50% on first choice votes.

The other two races are both out of Georgia.  Georgia is one of the few states that require a Senate candidate to get 50% of the vote to win.  If not, there is an actual runoff several weeks later.

With only three candidates running, the “regular” election for Senator David Perdue’s seat is least likely to go to a run-off, but the race could be close enough that a 1-2% result for the Libertarian candidate might just be enough to force a runoff.  If there is a runoff for the regular seat, it will apparently be held on January 5.

The race most likely to go to a run-off is the special election in Georgia.  Unlike most states, a special election in Georgia is what is sometimes referred to as a “jungle primary” (a highly inaccurate term as it is not a primary).  Basically, there are no party nominees and all candidates from all parties run on one ballot.  When you have enough “serious” candidates running, it becomes very difficult for any candidate to get the 50% needed to avoid a run-off.   In the case of the Georgia special election, you have twenty candidates running.  The good news is that it seems like Democrats are consolidating behind Raphael Warnock, making it all but certain that he will finish in the top two.  However, it seems unlikely that he will be able to get to fifty percent.  If he does have to face a run-off, it will either be against Senator Kelly “Insider Trading” Loeffler or ultra-conservative Representative Doug Collins.  Whether the nasty campaign between these two for the other slot in the run-off will leave enough bad blood to give Reverend Warnock a chance in the January runoff remains to be seen.

One thing to note about the Georgia runoff elections.  The regular Senate term ends on January 3.  So if the regular seat goes to a run-off, that seat will be vacant until after the run-off result is certified.  On the other hand, as it is a special election to fill the seat for the remainder of the term, Senator Loeffler gets to keep her seat until a winner is certified even if she finishes third on November 3.  (This weird circumstance is sort of the inverse of the situation in Arizona where Mark Kelly running in a special election could take over in late November when the result is certified in that state.)

And, of course, with an actual second round of voting in one or both Georgia Senate elections, there is the chance for voters to react to the results in other elections (both the Presidential election and the Senate results in other states).   And there is always the difficulty in getting voters to vote for a second time (or third time if there are state runoffs in December) especially when the voting is taking place in January.  (Avoiding the need to have a second election date is one of the advantages of ranked-choice voting over traditional run-offs.)

So, we could still be talking about Senate elections as we bunker down for our virtual holiday gatherings this December.  Hopefully, control of the Senate will not still be up in the air, but anything is possible this crazy year.