ANALYSIS | It took days to confirm who won the 2020 U.S. election. This time could be faster | CBC News

A young state senator in Michigan foresaw trouble before the last U.S. presidential election, warning of looming chaos in the counting of votes.

In fairness, this hardly required clairvoyance: the potential for problems was apparent, even months before the 2020 vote, with analysts, including CBC News, predicting near-certain bedlam.

It would take days to properly count Democrats’ votes because they tended to vote more often by mail, especially during the pandemic, and those mailed ballots would take longer to process; and Donald Trump would exploit that delay to delegitimize the election.

“We raised these flags over and over again,” said Jeremy Moss, a Democratic senator from Michigan who was then in his first term. He recalls pleading in vain for his opponents to pass a law that would let election administrators start processing mail-in ballots earlier, as is allowed in dozens of states.  

“All of this was predictable, and indeed predicted.”

In an interview with CBC News this week, Moss insisted those delays had consequences, helping Trump whip up unrest, which culminated in the Jan. 6 attack on the U.S. Capitol.

In Nevada, Cisco Aguilar describes his scare-scenario for this year: The electoral count is tied 266-266, and an entire nation awaits the count from his state, where he’s the top election official. 

“That is my biggest fear that keeps me up in the middle of the night,” Nevada’s secretary of state said during a panel this year, hosted by the voting-access group Campaign Legal Center.

One thing Moss and Aguilar have in common: they’ve worked to change things.

In Michigan, Moss sponsored a bill letting cities start processing mail-in ballots eight days before election day. It’s one of several voting laws enacted by Democrats after they won control of certain state legislatures in the 2022 midterm election. In that same election, Aguilar won office in Nevada; he has informed state officials they can start counting mail-in ballots 15 days before voting day.

The new math on mail-in ballots

The bottom line is that this year, delays are no longer guaranteed. There’s a chance an election winner will be declared on election night.

And it’s not just because more people might vote in person rather than mail in their ballots like they did at the height of the pandemic; the rate of absentee voting surged from one-quarter of the electorate in 2016 to nearly one-half in 2020. 

It’s also because there are new rules in several states that give election workers a head start on the time-consuming process of opening envelopes, checking IDs, confirming matching signatures and feeding ballots into machines.

In 2020, about five swing states lacked rules for early ballot handling. This included Nevada, where it took four days to declare a winner and Georgia which took even longer. 

In Michigan, it took just one extra day, but on that day, an angry crowd of Trump supporters converged on a vote-counting facility in Detroit. According to Moss, the Michigan senator, that scene started a national trend. 

This year, only two of those five swing states still have the same slower system. The three mentioned above updated their rules. But in Wisconsin and Pennsylvania, Republican legislatures blocked changes.

In Pennsylvania, the Republican-controlled Senate cited two reasons for stalling a bill passed by the Democratic-led state house: first, they said it should be paired with a new voter-ID law, and second, they noted that early results could be leaked, unfairly influencing the election.

The net effect of all these reforms is that to see days of suspense like in 2020, it would take a very close electoral count, hinging on very specific states.

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Al Schmidt, Pennsylvania’s top election official, would rather not relive that experience.

He recalls with incredulity the frenzy that befell his state four years ago, describing how people drove up to Pennsylvania’s vote-counting headquarters from Virginia with guns in their cars because they’d read that counterfeit mail-in ballots from China were being shipped there by the Mafia.

“I’m sorry, I’m laughing. It’s not a funny thing, it’s just so absurd,” Schmidt, a Republican, said during the Campaign Legal Center event in June.

“People [start] acting out because they believe a lot of this nonsense that they might simply read from some idiot uncle on Facebook.”

After the 2020 election, some states started reaching out to national organizations to inquire about best practices.

Officials started to contact the National Conference of State Legislatures to ask what their peers had done to count mail-in ballots quickly, and how they kept the results secret.

The advice: Copy Florida

“One of the most common questions we got was, ‘How the heck did Florida do it?’ ” said Wendy Underhill, the group’s director for elections.

Her advice: Start processing early. Open the envelopes, check signatures, confirm voters’ identity, remove ballots, put them in piles, slide them all into counting machines — and then do nothing with them until election night.

“You don’t hit ‘count’ [on the machine]. You just hit ‘scan’, basically,” Underhill said in an interview. 

“And then, on election night after the polls close, that’s when you hit ‘count’ — and, boom, it’s already got all of the scanned images in there.”

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So why haven’t all states done this? Especially when dozens have been successfully counting faster.

The blunt reality, says Michelle Kanter Cohen, is that some are operating in bad faith. As senior counsel for the Fair Elections Center, a non-partisan voting-rights group, she doesn’t specifically mention any politicians or parties.

The people fighting against a faster vote-count, she says, are the same people trying to foment distrust in elections.

“For election-deniers who want to sow doubt about an election result, it’s to their advantage to not have the final result on election day,” she said. “These are not good actors.”

Georgia, however, makes for an unusual case study.

The Republicans who control that state have allowed faster ballot-processing, unlike their party’s lawmakers in Pennsylvania and Wisconsin.

They have passed dozens of new laws. One says processing of mail-in ballots can start weeks before the election, while counting can start at 7 a.m. on election day. Another says these ballots, in fact, must be counted immediately — within an hour of the polls closing.

The count is just one front in the fight

And that’s where critics cry foul: “This is an impossible and overly burdensome requirement,” the American Civil Liberties Union said.

Georgia serves as a reminder that the battle over election rules is multi-faceted. In 2020, even after the votes were counted, there were legal fights, power-struggles on county election boards and a failed attempt to disrupt congressional certification on Jan. 6.

Now Trump and his allies have promoted a plan that could stall Georgia’s vote certification. Under a rule change adopted by the increasingly partisan state elections board, any of the state’s 159 counties could delay certification as they investigate fraud. The Democrats are suing.

In Michigan, Moss says he hopes things go more smoothly this time. But he notes that just as election officials learned from 2020, Trump has, too.

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And if Trump loses, Moss says he’ll use every tactic he can.

“We all have an expectation he’s going to fight it until the next Jan. 6. So we’re on guard — and we’re being vigilant about new forms of conspiracies and lies,” he said. 

And after the election? “Hopefully, we’ll just be done with Trumpism once and for all,” he said.