The uncertainty over the result is largely due to the unique circumstances brought about by holding an election during a raging pandemic
Fawaz Shaheen | Clarion India
IT has been more than 48 hours since Americans finished voting in their Presidential elections, but there is still no result in sight. Although current trends indicate that former Vice President and the Democratic Party nominee Joe Biden will unseat President Donald Trump, with potential recounts and myriad legal challenges, the final result may not be clear for another few days, or even weeks.
The uncertainty over the result is largely due to the unique circumstances brought about by holding an election during a raging pandemic. However, it is also rooted in the arcane Presidential election system of the United States.
How is a US President elected?
Every four years, political analysts and scholars get a chance to remind the world that the US President is not directly elected by popular vote, but by chosen electors in an electoral college. When US citizens vote for a particular candidate for President, they are actually voting for a slate of electors from their state who will in turn vote for their preferred candidate.
Each of the 50 states in the US (and the capital Washington DC, which is not a state) are allotted a number of electors based on the number of their representatives in both Houses of the American Parliament. This means each state gets a number of electors equal to their seats in the House of Representatives plus two for their senators (each state is represented by two senators in the Upper House).
For example, the state of New York has 27 seats in the House of Representatives and two senators. Therefore, it gets 29 electoral votes. The total number of electors for all states combined is 538, and in order to be elected President, a candidate must get the support of at least 270 electors (a simple majority) in the electoral college.
This system is enshrined in the US Constitution. Article II, Section 1, Clause 2 of the Constitution lays down that each state shall appoint its electors in a manner determined by its state legislature. It is rooted in America’s history as a Union that was formed by the coming together of distinct colonies in North America that collectively declared their independence from the British monarch.
Initially, the Presidential electors were chosen by the state legislatures. However, in just a few decades of independence, most states had transitioned to a system where the electors were chosen through popular vote. In all states except two (Maine and Nebraska), the winner of the popular vote in the state is awarded all the states’ electoral votes. In Maine and Nebraska, one electoral vote is allotted per district, and an additional two votes are given to the statewide winner.
In December (by law, the first Monday after the second Wednesday of December), each state convenes a meeting of its chosen electors who then vote for a President and Vice President. In the first week of January, the newly-elected House of Representatives and Senate in a joint sitting tabulate the electoral votes from each of the states and officially declare a winner, who then takes oath of office on 20 January.
This unique electoral system is the reason why winning the most votes nationally does not guarantee winning the Presidency. A candidate may win by huge margins in some of the most populous states like California or Texas to win the popular vote, but unless he/she wins in enough states (even if by razor-thin margins) to get 270 electoral votes, he/she cannot be President. This has happened four times in US history, and twice in the last 20 years. Both George W. Bush (2000) and Donald Trump (2016) won the election despite losing the popular vote.
The current uncertainty
Usually, the winner of the electoral college becomes apparent on the day of the election. This year, however, the contingencies of conducting an election in the age of Covid-19 have caused a number of delays and uncertainty. These delays were not unexpected. In fact, election officials had been warning about it for weeks.
By law, the popular vote for US President is cast every four years on the first Tuesday of November. Many states also have provisions for voting by mail or early voting, and, in most states, these early votes are not tabulated till after the votes cast on election day have been counted. This means that by late night on the election day, or early next morning, most election-day votes are counted and only then do election officials get to the early votes.
Since most people generally vote on the election day, the results are usually known on the election night or by next morning and the early votes rarely make a significant difference. However, this year, fear of contracting corona virus in overcrowded polling booths led an unprecedented 101 million-plus Americans to vote before election day, including more than 65 million by mail. To put these numbers in perspective, the total votes cast in the 2016 election was 137 million. (For a detailed breakup of early votes cast this year, see this analysis by the US Elections Project https://electproject.github.io/Early-Vote-2020G/index.html)
Most analysts are predicting a record-breaking turnout of around 66% in this election, which would make it the highest in any Presidential election since 1900. The sheer number of votes that need to be counted–most of which could not begun to be counted till after the election day–plus the Covid-19 guidelines that need to be followed by election officials have had the combined effect of delaying the vote counting process in several states.
When will we know who won?
Adding to the uncertainty is President Donald Trump’s claims of voter fraud and alleged ‘illegal’ votes being counted. Election officials have strongly denied these claims, and so far no evidence of large-scale voter fraud has emerged.
President Trump had significant leads in many key states on the election day, which has been receding, and in some cases even overturned, as early votes are being counted. One reason for this is that Democrats pursued a deliberate strategy of asking their supporters to vote early in order to mitigate the risk of polling booths turning into Covid-19 hotspots. Republicans in most places largely stuck to in-person voting on the election day, and that difference has become clearer as early votes continue to be counted and the result skewers in favour of Democratic challenger Joe Biden.
Final results from most states are largely expected by the end of the week. However, with potential recounts and President Trump’s declaration that he will go all the way to the Supreme Court (many legal challenges have already been filed by his campaign in various states), this election may not have a clear winner for days or even weeks to come.
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Fawaz Shaheen is a law graduate from AMU and has completed his LLM from the Indian Law Institute. He is currently a Researcher at Quill Foundation, a Delhi-based Research and Advocacy group focusing on Human Rights and Constitutional Law and Policy.
