Essential Politics: We don’t yet know who won. Now what?

WASHINGTON —  In a year full of plot twists that left Americans gobsmacked — an impeached but acquitted president, a global pandemic that by election day had killed more than 230,000 citizens and sickened more than 9 million (including President Trump), record-setting natural disasters and an unprecedented pre-election Supreme Court confirmation — it was not a complete surprise that the nation awoke Wednesday without knowing whether he or Joe Biden will be president after Jan. 20, or which party will control the Senate.

Much pre-election media coverage had focused on the potential uncertainty that indeed came to pass in closely divided swing states, mainly reflecting the vote-counting delays owing to a record number of absentee ballots cast by Americans seeking to avoid infection at polling places. The only thing certain is that we won’t have an answer for perhaps days to come.

In question are several million uncounted ballots in a handful of states including Nevada, Pennsylvania, Michigan, Wisconsin and Georgia.

Michigan and Wisconsin officials were confident that most of their count would be completed today, Jennifer Haberkorn and Evan Halper report. Other states could stretch on for days; officials in Pennsylvania estimated their count would be complete by the end of the week. Many of the outstanding ballots are mail-in votes thought to favor Biden. Still, both candidates still can see a path to victory.

Here’s where things stand.

Four things we know

Some races were easy to predict. Biden, the former vice president, performed predictably well in Democratic strongholds including California, New York, Maryland and New England. Trump took solidly red states in the South and across the Plains, including Alabama, South Carolina, Missouri, Oklahoma and the Dakotas. But there were a few surprises: Arizona, which until last night had voted for a Democratic presidential candidate only once since 1948, went to Biden, James Rainey reports. And Biden remained in contention in Georgia, pending uncounted votes.

Win or lose, Trump will maintain his flair for disruption. In an appearance just after 2 a.m. Eastern on Wednesday, Trump repeated his unfounded claims of voting fraud and falsely declared victory. He doubled down on recent threats to take the election to the nation’s high court, which now includes three of his appointees, saying, “So we’ll be going to the U.S. Supreme Court. We want all the voting to stop; we don’t want them to find any ballots at 4 o’clock in the morning and add them to the list.” Mark Z. Barabak writes that legal experts are skeptical that Trump’s claims have any legal standing, though that doesn’t stop him from making them — and provoking his supporters to reject any outcome that’s not a Trump victory.

In congressional races, Democrats didn’t get the blue wave they’d hoped for. While some races remain undecided, David Lauter writes that Democrats who envisioned a progressive sweep were disappointed. The counting isn’t complete, but Janet Hook writes that Republican Senate incumbents viewed as vulnerable, like Maine’s Sen. Susan Collins and Sen. Thom Tillis of North Carolina, posed a more formidable challenge than Democrats expected.

We have the returns for a few California ballot measures, too. California’s returns are notoriously slow, as John Myers wrote earlier this week. But we don’t have to wait to know how voters felt about some propositions. As Myers writes, voters approved a measure that allows companies such as Uber and Lyft to keep designating their drivers as independent contractors, bringing a decisive end to an expensive and high-profile campaign. Voters also rejected a plan to expand rent control.

Some things that we don’t know

The obvious one: The results. With election officials still counting ballots in several battleground states, as we’ve indicated the presidential race remains too close to call in Wisconsin, Michigan and Pennsylvania. Plenty of congressional races are up in the air, too. In California, Republicans had hoped to reclaim four House seats lost in 2018, and three of the four remain tight, Dakota Smith writes.

Another question: Did the much-reported problems at the U.S. Postal Service impede the delivery of absentee ballots? A federal judge ordered Postal Service inspectors to sweep postal facilities Tuesday in a number of locations — including in six battleground states — in an attempt to find 300,000 ballots that had been received by the mail agency, but not logged as delivered, Laura J. Nelson and Maya Lau reported.

Lau, Nelson and Matt Stiles also wrote that some 21,000 ballots were flagged for rejection, largely from Black and Latino communities.

The biggest question mark of all, though, is what potential conflicts lie ahead? As we’ve noted, Trump has repeatedly made false claims of fraud and threatened to go to court.

As Myers wrote in Monday’s newsletter, voters casting their ballots is the main act in the election process, but only one part. More than two months of legal maneuvering and electoral procedure lie ahead, even if there’s no court battle.

You might remember this part from your high school civics class. The 2020 election season has been so rife with shenanigans — real and imagined — that these final steps are more consequential than in years past. Here’s what still needs to happen:

Voting counting. As Arit John writes, no one standard or governing body sets guidelines in our system that relies on states to administer elections, each by its own laws. Some states take days to sort through all the ballots — a few didn’t even start counting absentee ballots until Wednesday morning — while others allow for a relatively quick turnaround. Media organizations call races based on a combination of factors, including exit polls and early returns, but it’s not the same as a solid count. That’s especially true given the high number of absentee ballots.

Vote certification. States must settle on a specific count as the official record. Each state has a different deadline, but in California, Secretary of State Alex Padilla’s office has until Dec. 11 to certify and post the results.

Dec. 8: Safe harbor deadline. The election of 1876 was about as messy as they come, with states in the Reconstruction South submitting multiple sets of contested votes to the Electoral College. The fallout prompted Congress to set a deadline for states to resolve disputes. If the count remains contested, Congress steps in. Matt Pearce has more about how it works here.

Dec. 14: The Electoral College votes. For a candidate to receive the most votes, also known as winning the popular vote, is an achievement, but it doesn’t mean he or she is elected — just ask Al Gore and Hillary Clinton. Voters are actually choosing a set of electors for their state — committed to a particular candidate — who then vote in the Electoral College on Dec. 14. Most states use a winner-take-all approach, giving all their electoral votes to the candidate who wins the state’s popular vote; Maine and Nebraska split their electoral votes. Though electors can technically change their vote — with penalties in some states — it’s extremely uncommon.

Jan. 6: Congress receives the results. A joint session of Congress convenes to review the results and accept them. Lawmakers can object to the returns of a particular state; though it has been twice attempted, an objection has never been accepted.

Jan. 20: Inauguration day. As set out by the Constitution, the president is officially sworn into office (with plenty of pomp and circumstance).

From the archives

We generally expect to know who our president is the day after an election but that’s not always what’s happened. Disputes over vote counts have delayed the results a handful of times and posed a challenge to the media outlets trying to report them. In recent memory, that includes the 1960 and 2000 races.

In 1960, John F. Kennedy bested Richard Nixon in the popular vote by just 119,450 ballots out of nearly 68.5 million cast. Republicans especially disputed the result in Illinois, where Kennedy’s margin of victory was 0.2%. Allegations of fraud came from both sides and California was among the contested states.

The headline on The Times’ Nov. 9 edition read “TREND INDICATES KENNEDY WINS.” Coverage in the following days noted the California race hinged on absentee ballots, which shrunk Kennedy’s lead, even as the paper published stories about Kennedy’s transition and referred to him as the president-elect.

In 2000, like other media, The Times stopped short of declaring a victor amid the uncertainty, leading the Wednesday, Nov. 8, paper with the headline “Bush, Gore Neck and Neck as Battle Comes Down to Florida.” The lead story, written by Barabak, carried the headline “Candidates Struggle for Bare Margin of Victory” and described the election as too close to call. The next day’s paper reported “Florida Recount Underway.” Additional stories covered how TV news was “Badly Embarrassed by Bad Calls”; the American public’s reaction to the uncertainty (“All Night, Into the Day, Americans Fume and Puzzle Over a Presidential Potboiler”), and the Bush campaign’s search for a strategy in the 1960 conflict.

Americans would not get an answer until December. On Dec. 13, The Times reported, “Bush Wins in Supreme Court; Gore is Pressured to Concede.”

Here’s what else you should read today

— A survivor. A funeral director. A marriage divided. Times staffers spoke with voters across the country who shared how their experiences with COVID-19 shaped their votes this year.

— After a year of political activism, athletes have forced ESPN and other networks to change their game plan on mixing politics and sports, writes Stephen Battaglio.

— For all the worries of chaos, crowds and violence, little drama materialized as voters cast their ballots on election day, write Chris Megerian, Seema Mehta and Evan Halper.

The view from California

— There’s plenty of counting still in progress, but you can follow the results of state races here.

— From James Queally: The race for Los Angeles County district attorney became a litmus test for whether conversations about criminal justice reform would lead to real policy. Former San Francisco Dist. Atty. George Gascón surged to an early lead over incumbent Jackie Lacey.

— Phil Willon reports a Northern California judge on Monday tentatively ruled that Gov. Gavin Newsom overstepped his authority when he ordered vote-by-mail ballots to be sent to all registered voters. But the ruling won’t impact votes, because the state Legislature voted to take the same step.