Monthly Archives: October 2020

Election Night Preview — Part 5 (11 PM EST to Sunrise)

Recent elections have been so close that between the inability to call states and the large number of electoral votes on the West Coast, the news media has been unable to call the presidential election before 11 PM EST.

Before going into the states that will be closing at 11 p.m. or later, some words about the process of projecting a winner.  Each network has a team that makes the decision on when to project.   For all intents and purposes, this team is in a sealed room with no knowledge about what the talking heads or saying or whether other networks have made a projection.   There are lots of data that these teams look at: 1) election day exit polls; 2) early vote exit polls; 3) polls of those who voted by mail; 4) the reported early vote; 4) how many mail-in ballots remain to be counted; 5) “key” precincts (key in the sense that the team knows the typical vote in those precincts and can judge the swing in those precincts); 6) which precincts (and counties) have not yet reported.  Basically, while the margin of error in exit polls makes it difficult to call a close (52-48) race based on exit polls, you can call a landslide (60-40) based on exit polls.  For those in which exit polls show a close race, you need enough votes to make a call.  And if the early results are consistent with a close race, you can’t make a call into the outstanding vote is too small to realistically swing the race (i.e. the remaining precincts are in areas that favor candidate X who is ahead or candidate Y would need 95% of the remaining vote and has been getting 80% of the vote in similar precincts).  One fact that could hinder making projections and lead to a state being uncalled on election night is a large number of uncounted absentee ballots (due to a state not being able to count before election day) or a large number of absentee ballots not yet returned in states that have a post-election day deadline for receipt of absentee ballots if postmarked by election day.

At 11 p.m., we will have partial closings in the remaining parts of Idaho, North Dakota, and Oregon.  Of these three states, most of the voters Idaho and North Dakota are in the part that closed at 10 p.m. EST.  However, in Oregon, most of the voters live in the Pacific time zone which will close at 11 p.m.  The entirety of the state also closes for California and Washington,  At midnight, the polls close in part of Alaska and in all of Hawaii.  Finally at 1:00 a.m., polls close in the remainder of Alaska. Continue Reading...

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Election Night Preview — Part 4 (10 PM to 11 PM EST)

It is very highly unlikely that we will have a projected winner when the clock strikes 10 on the east coast.  Mathematically, it’s possible as by 10:01 p.m. polls will officially be closed in states with 450 electoral votes.  But, practically speaking, it would take all of the toss-up states that have closed before then to have enough votes counted that the networks felt comfortable projecting them, and they would all have to go the same way.  Even in years like 2008, enough of the Democratic vote is in states in which polls close at 10 or 11 p.m. EST, that it would take flipping states like Texas and Georgia to have a shot at reaching 270 before 11 p.m.

Looking at 2016, the first battleground state — Ohio — was called at 10:36 p.m.  Depending on how things play out with mail-in ballots and early voting, some of the battleground states might get called faster, but others are likely to be called much later.

In this hour, we will have partial closures in Idaho, North Dakota, and Oregon.  In North Dakota and Idaho, the majority of the population is in the part of the state that closes.  As such, we will get a good idea about the state from the precincts that have closed.  On the other hand, only a tiny part of Oregon will close at 10 p.m. and all of the key races will have to wait another hour.   For North Dakota and Idaho, none of the races are expected to be particularly close.  So those contests should be called shortly after 11. Continue Reading...

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Election Night Preview — Part 3 (9 PM to 10 PM EST)

As we noted in the previous two posts, a key part of the night will be how fast votes are counted and, in particular, what share of early and mail-in votes are released on election night and how many mail-in votes are potentially still in the mail and eligible to be counted.   There is also the issue of how long the lines were — especially in urban precincts — which could delay the count of votes cast on election day.  At this point in time, we should have projections from Kentucky and Indiana and the bluer and redder states from the 7 PM EST hour.  The question during this hour is whether we start getting projections from some of the swingier states with 7 PM closing times like Florida and Georgia have been called, and, if so, in which direction.

During this hour, nine states will close across the entire state and the remainder of the polls will close in Kansas, Michigan, South Dakota, and Texas.  South Dakota is unlikely to be close for any race, and the majority of Kansas and Texas close at 8 PM  EST.  What to look for in Michigan, Texas, and Kansas is addressed in Part Two.  Besides these partial closures, we have full closures in Arizona, Colorado, Louisiana, Minnesota, Nebraska, New Mexico, and Wyoming.

Louisiana is a weird state in that there are no party primaries.  Everybody runs on the general election ballot, but it takes a majority to be elected.  While none of the races are expected to flip, there is always the chance that the sheer number of candidates on the ballot could result in a run-off.  Of course, some of these run-offs will feature two Republicans (or, in the one district that the Democrats hold, two Democrats).  Wyoming also features no close contests and should be an early call across the board. Continue Reading...

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Election Night Preview — Part 2 (8 PM to 9 PM EST)

As noted in the previous post, by 8 p.m. Eastern Standard Time, we should have a significant amount of precincts being reported in the two earliest states (Kentucky and Indiana) and should be starting to get some counties reporting votes in Florida, Georgia, South Carolina, Virginia, and Vermont.  During this hour, the counts in those states should be increasing.  By 9 p.m., we should be seeing either some projection in those states or an indication that the states are too close too call.  We may also be getting an indication in some of those states of how many absentee votes might remain to be counted (which could determine whether it will be possible to make any projection in those states on election night).

While it would be nice if we could get calls in a state like Virginia early in this hour, the bigger question as the hour goes will be the types of swings that we are seeing in these states.   Virginia in 2016 was a leading indicator as we were just not getting strong results compared to 2012.  So as this hour goes along and the networks start looking at the maps of the state, the key thing to pay attention to is how the numbers are comparing to 2016.  Even if the networks aren’t comfortable in calling a state yet, if the results are showing that Trump is underperforming in red parts of a state (i.e. rural counties) and Biden is overperforming in the suburbs, then that is a good sign for the rest of the evening as Trump only one by the slimmest of margins in 2016 and any erosion in his support could prove fatal.

This hour has the most states close.  You have partial closures in Florida (the rest of the state closed an hour earlier), Kansas, Michigan, South Dakota, and Texas.  While a significant part of South Dakota will close an hour later, the polls close for most of the population in Kansas, Michigan, and Texas at 8 p.m. Eastern.  In addition to these states, polls for the entire state close at 8 p.m. Eastern in Alabama, Connecticut, Delaware, D.C., Illinois, Maine, Mississippi, Missouri, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Rhode Island, and Tennessee. Continue Reading...

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Election Night Preview — Part 1 (6 PM to 8 PM EST)

Election Night in the U.S. is always different from how things play out in most other countries.  The U.S. is one of a handful of countries that have more than two time zones.  And, in most of those other countries, all areas within the same time zone close at the same time.  Voting hours in these countries are set by federal law.  In the U.S., however, voting hours are set by state law.   And that creates a weird sequence of poll closing times.

In addition, poll closing times are, in some sense, tentative.  While you need to be in line to vote by the time that polls close, anybody in line to vote gets to vote.  For states that close in the early evening, long lines at closing time are nor unusual as there is not much of a window to vote after getting home from work resulting in many people attempting to vote after work still being in line when the polls cloase.  And there is always the possibility of an emergency order permitting certain precincts to stay open late to compensate for problems earlier in the day.  Even after polls close, many jurisdictions use a centralized counting location.   That means that there is a lag time between the polls closing and the ballots getting to the counting location.  In my county, the closest precincts are still only getting to the county seat about thirty minutes after polls close and the far edges of the county are getting there around an hour after the polls close.  As a result, it typically takes ninety minutes for my small (eighteen precinct) county to report all of the results.  Large urban counties can take three to four hours to report all of their election night results.  This delay in reporting (which is pretty much the same in most states) is one thing that traditionally makes it difficult to project result.  If the three largest counties in a state have only reported 10% of the vote while the rest of the state is 80% in, there is still a large number of votes that can change who wins a close race.

The other issue that will impact this election is the number of mail-in votes.  As we have previously discussed, every state has different rules for counting mail-in votes.  In most states, early in-person votes will be released around the same time (if not before) the election day votes, but mail-in votes will be reportedly differently in different states.  As such, with each state, the big questions will be:  1) is the reported vote just the early vote or also the election day vote; 2) if we have full early vote and partial election day vote, how much does the election day vote differ from the early vote; and 3) how much of the mail-in vote has been counted and how much may remain to be counted or still be “in the mail”?  The early count from a state may appear to be lopsided, but — without knowing the answers to these questions — it will be more difficult to determine if we have enough of the vote counted to know who is going to win.  In states that are used to large mail-in vote totals, it is not unusual to not know the winner of the closest race for a day or two after the election as we finally get enough mail-in votes counted. Continue Reading...

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Can Justices Get the Issues that they Want

During her confirmation hearings, soon-to-be Justice Amy Coney Barret conveyed the impression that Supreme Court justices do not control the issues that come before them.  This impression is only very slightly true and is mostly false.

The Constitution does limit court to deciding cases and controversies.  A judge does not get to wake up in the morning and say that today I am going to look at absentee voting rules in Texas.  Instead, the judge must have some party bring that case.  But, there are two ways that judges, especially Supreme Court justices, can influence what cases are brought to them.

First, the United States Supreme Court is mostly a discretionary court.  In other words, the Supreme Court gets to choose what cases they take.  If four justices want to look at Second Amendment issues, the Supreme Court will take a Second Amendment case.  The justices, for the most part, understand that there are certain circumstances where they should take a case.  Thus, you have a lot of cases involving issues of federal statutes on which the lower courts have split.  But, for the most part, it is up to the justices how many abortion or civil rights or Fourth Amendment or Free Speech cases they take. Continue Reading...

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The Future of Energy

With very little time left in the campaign, President Trump is trying to exploit the comments that Vice-President Biden made about the future of energy in Thursday night’s debate.  Vice-President Biden’s statement meet the classical definition of a gaffe — when a candidate actually speaks the truth.

The reality is that whomever wins the election the oil industry is in trouble.  And the major oil companies have known this for years and have made adjustments to compensate.  It’s the folks on the ground relying on the oil industry for their jobs that do not know what the suits in the offices have already come to terms with.

I grew up in the oil belt in the 70s and 80s.  Even then, the U.S. oil industry was in trouble.  The simple reality is that we have a lot of foreign competitors who also have vast oil reserves.  The health of the U.S. oil industry is closely linked to the price of oil.  When oil is over $60 per barrel, the U.S. oil industry is in good shape. When oil gets down to $30 per barrel, it is really not cost-effective to drill for new wells in the U.S.  And, as time goes on, old wells also become less cost-effective as all of the “easy” oil has been removed and it is more expensive to coax the last drops of oil out of the well. Continue Reading...

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Election Cases

Right now we are in the midst of phase one of election cases.  Here are some basic to understanding the disputes that are currently occurring and may occur over the next several weeks.

As noted in previous posts on legal issues and elections, the United States is big on the concept of federalism.  There is a very sharp, but not absolute, division between state law and federal law.

For the most part, election law is a matter of state law.  As such, many election disputes occur in state court.  For an election dispute to go to federal court, there has to be a federal issue.  Since only a handful of federal statutes restrict state discretion on federal elections, most federal cases involve a claim that the state election law implicates the United States Constitution (most frequently, the Equal Protection Clause of the Fourteenth Amendment).  This division between state court and federal court can be rather significant for this first phase of election case. Continue Reading...

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Absentee Ballot Issues

A recurring issue with absentee ballots is the possibility that they might not get counted.  While the party of voter suppression hates to admit it, the reality is that there are more ballots rejected for technical reasons than fraudulent ballots.  However, despite all of the news stories, the rate of rejection is actually low.  It is safe to vote by absentee ballot as long as you are aware of the things that could cause your local election authority to reject your ballot and take appropriate steps to avoid those mistakes.

The leading cause for absentee ballots being rejected is that they arrive after the deadline.  If you do not know the deadlines in your state, that was covered in yesterday’s post on when votes might be counted.  With current concerns about the post office, you need to mail in your absentee ballot now.  If you have not already mailed it in, check with your local election authority about hand delivery.  (Most states allow it, but some have restrictions).

The second major cause is noncompliance with the rules for completing an absentee ballot.  And here is where the technical reasons for rejection play a major role. Continue Reading...

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Timing of Vote Counts

Heading into the election, we are facing only partially charted territory.  This year, based on the votes so far, several states are going to have an unusually high number of mail-in ballots, especially in states that have somewhat restrictive rules on mail-in absentee ballots.  As voters in state with a high percentage of late arriving mail-in absentee ballots know, when 35% of the vote remains to be counted after election day, it is not unusual to see tight races go back and forth as more ballots are counted.  So here is what you need to know about the rules for processing ballots.

Generally speaking, for this purpose, there are four different ways to vote in the U.S.  First, there is the traditional in-person vote on election day.  Second, there is early in-person voting at vote centers.  Third, there is the traditional mail-in absentee ballot.   Finally, there are provisional votes.

For counting purposes, early in-person voting will generally be released on election night.  In some states, the early voting numbers are released shortly after the polls close.  For the in-person election day vote, that count tends to take a little bit longer.  Since everyone in line at poll closing time votes, precincts actually close a little bit later than the official time.  And, in many states, the ballots are then taken to a counting center.  So it may take several hours to get the “election day” vote. Continue Reading...

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