This post has been updated with the latest news
Trump’s efforts to declare victory when he wants to are consistent with his latest attacks undermining Tuesday’s election, by saying that all votes should be counted on election night. “It would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws,” he told reporters last week. By that standard, any ballots not counted by, say, an arbitrary deadline of midnight Wednesday just wouldn’t count.
While some states have enough results reported election night to declare the winner, because one candidate is too far behind to make up for the gap, that doesn’t mean all the votes are counted. If states were to suddenly do what Trump wants, the election would be decided on unofficial results rather than official results, which is inherently unconstitutional and arguably undemocratic. “The close of the polls is not the end of an election,” says the nonpartisan National Conference of State Legislatures (NCSL).
Counting and making those results official takes a while in each state, so much so that federal election law gives states more than a month after the election to count and certify their results. That’s why the electoral college doesn’t meet until mid-December to officially vote.
And the states that have been called so far suggest a tight race that could indeed take days or longer to count.
Here are all the reasons ballots are legitimately counted after Election Day:
Absentee ballots take a while to count
Mail-in voting is not new this year. Thousands of people in every state vote by mail for various reasons every election. (Some states have been stricter than others on what excuses are allowed.) Absentee ballots almost always take longer to count, because they’re mailed in and have more processing to do — take off the outer security envelope, check that the signature matches the one the state has on file. Some states can’t even start that process until Election Day. And half of states allow ballots to come in after Nov. 3 as long as they’re postmarked by Nov. 3.
The volume of by-mail votes is particularly high, and that’s why states such as Michigan and Pennsylvania are warning voters that they may not be able to give even unofficial results until the Friday or Saturday after the election.
But election officials say that rather than being a sign of wrongdoing, taking their time to announce mailed results is a sign that they’re getting the vote count right.
“This is not a speed game,” Iowa Secretary of State Paul Pate (R) told The Fix in April. “This is going to be an integrity and safety game.”
Voters can fix errors on their ballots
About 30 states allow voters to correct errors on their mailed ballots, some with a grace period of a couple days after Election Day. With so many people voting by mail for the first time this year, and with the laws on how to vote changing up to the last minute in some key swing states because of litigation, it’s possible to see a very high number of people trying to correct errors on their ballots so they can be counted.
Provisional ballots have to be counted
If you show up to a polling place and they don’t have your correct address, or if you requested a mail ballot but never filled it out and went to vote in person, in most states you get handed what’s called a provisional ballot instead.
These provisional ballots get set aside until election officials can verify your information or that you didn’t already vote by mail. None of that happens on election night, especially since bigger states can have as many as 100,000 provisional ballots to go through, according to the NCSL. Some states mandate that provisional ballots be counted by a certain date after the election — four days in Florida, seven days in Pennsylvania.
Canvassing comes next
Once the ballots are counted, local election officials go through the results and prepare a report for the state. In 21 states — including big swing states such as Florida, Georgia, North Carolina, Michigan and Wisconsin — local election officials have two weeks after Election Day to do this. Then the state does its own canvassing and reports its results.
Then the votes get certified
Next, the state’s top election official certifies results — usually that’s the secretary of state. In many states, the governor signs off on those results. And then those get handed to Congress, which in January certifies the results itself.
Campaigns can sue over the results
For all the president’s talk about not counting results that come in after election night, the Trump campaign is relying on the days and weeks afterward to try to win the election.
The Trump campaign says it has 8,500 lawyers lined up across the country ready to help challenge results, and some states are expecting them. In Pennsylvania and Minnesota, judges have ordered election officials to separate out ballots that arrive late, in preparation for lawsuits from Republicans about whether to count them. Democrats have lawyers in place to challenge results, too.
“You know, you could have a case where this election won’t be decided on the evening of November 3rd,” Trump said in an interview with Axios’s Jonathan Swan in August.
Indeed, if the Trump campaign does challenge the results to the degree it seems prepared to, counting the vote could drag out for weeks or more.
Voting in the 2020 U.S. Election
There are millions of votes left to be counted.
Live updates: The latest on the election.