Outside the Beltway

Midterm Outcome Might Not Be Decided On Election Night

For a number of reasons, we may not know the outcome of the midterm elections on Election Night.

Doug Mataconis · Monday, October 15, 2018 · 6 comments

There’s a good possibility that we may not know the complete outcome of the 2018 midterms by the end of the night on November 6th:

Voters planning to stay up late on Election Night to find out which party wins control of the House and Senate should be prepared for a possible marathon wait.

The unusually large number of close contests, many in states known for slow ballot counting, means the first congressional election of Donald Trump’s presidency could go into overtime, perhaps for days after Nov. 6.

State election officials will be contending with potentially narrow margins, absentee and provisional ballots as well as the potential for contested results.

The first results, after polls close in the eastern U.S. beginning as early as 6 p.m. New York time, may give an early indication of whether Democrats managed to generate a so-called wave election that sweeps Republicans out of control in the House and, perhaps, the Senate.

But even a rout is no guarantee of a quick resolution. In 2006, the last Democratic wave election, it took two days to determine they had flipped control of the U.S. Senate because of close results in Virginia and Montana.

“In the normal course of any election, there are going to be ballots that take longer to count,” said Michael McDonald, a University of Florida professor who tracks voting data. “If those are the states where there are particularly close elections, we may be sitting a few days before we know.”

As the above-linked article goes on to explain, there are a number of factors that could end up lengthening the battle for Congress as a whole or at least the outcome of individual races that could have an impact on the battle for either the House or the Senate.

On the House side, one of the biggest sources of delay could end up coming from California, which has an unusually high number of competitive races than it has in the past, largely due to the fact that polling is showing Democrats doing better than expected in districts that have usually gone Republican. Additionally, California is one of those states where voting by mail is popular and all ballots that are postmarked on Election Day are considered valid as long as they are received by the Friday after Election Day. By way of reference, in the midterm election of 2014, it took election officials in one California Congressional District to confirm the winner of the race in California’s 16th Congressional District. In that election, the Democratic incumbent was trailing on Election night but ended up winning the race after the absentee and mail-in ballots were counted. Similarly, during this year’s primaries, it took election officials nearly three weeks to determine the outcome in the state’s 48th Congressional District. Given the fact that Democratic pickups in California could prove essential to their ability to take the House, this could mean that we may not know if Democrats will control the House until sometime later in November, and at the very least we won’t know the size of their majority if they do.

Delays may also be a factor in other states, although their impact on the battle for Congress will likely be less significant. Washington State, for example, votes almost exclusively by mail and ballots are considered valid if they are postmarked on Election Day or placed in a ballot dropbox before 11:00 p.m. local time on Election Night. In the past, this has led to uncertainty over the outcome of elections for several statewide offices, including Governor’s races.

Another issue that could impact how long it takes to learn the outcome of the midterms is the role that absentee ballots and provisional ballots could play in the process. In close elections, these ballots could play a significant role in determining the outcome of an election and states vary in terms of how and when they are counted. In many states, absentee ballots are counted alongside, or even in advance of, the ballots from individual precincts that were cast on Election Day. Some states don’t begin counting absentee ballots until after the votes from individual precincts have been counted. In those cases, the outcome of individual races could be up in the air for several days at the very least. Similarly, provisional ballots, which are ballots cast even though there was some question about an individual’s eligibility to vote are generally left uncounted until it has been determined if those votes should be counted, something that is often a sources of dispute between the campaigns of the contenders in individual races. As with absentee votes, how these ballots are counted, and the circumstances under which they are considered valid vary from state to state and often end up being entirely subjective.

This brings us to the next potential delay that could impact the ability to determine who controls the House or the Senate, and it’s the one that involves the lawyers. Depending on the outcome of the individual races, we could end up seeing multiple House and Senate races end up in Court due to ballot challenges and other issues. In most cases, these disputes will likely be decided in a short period of time, but others could take longer. Some of the more notable examples of litigation in the wake of an election include, of course, the 2000 Presidential election, which went unresolved for nearly six weeks, and the recount in the 2008 Senate race in Minnesota between Al Franken and incumbent Norm Coleman, which wasn’t fully resolved until several months after the new Senate began sitting in January 2009. Other recent examples include the 2013 Attorney General race in Virginia and the fight over a single seat in the last year’s elections for the Virginia House of Delegates that was decided by a single district in which the winner was decided by drawing lots since the race ended in a tie. Given what’s at stake in November, it’s likely we’ll see several hard-fought legal battles in the case of close races.

One final factor could end up playing a role in the outcome of the battle for the Senate, and it comes out of Mississippi. The Magnolia State actually has two races for the Senate this year, but one of them could end up leaving the question of who controls the Senate up in the air for at least a month. In the first race, Senator Roger Wicker is running for a second term against Democrat David Baria. Whittaker is widely expected to win this race easily and has been leading Baria in the polls by a wide margin. The second race, though, is a bit less settled. That election was made necessary by the decision of longtime Senator Thad Cochran, who had been in failing health, to retire earlier this year. On an interim basis, the Governor of Mississippi, who is, of course, a Republican, appointed Cindy Hyde-Smith, who had been serving as the state’s Agriculture and Commerce Commissioner, to fill Cochran’s seat. Pursuant to Mississippi law, there will be a “jungle primary” on Election Day in which the most prominent candidates are Hyde-Smith, former Congressman and Secretary of Agriculture Mike Espy, a Democrat, and Chris McDaniel, who many will remember as the Tea Party backed candidate that challenged Thad Cochran for the Republican nomination in 2014 only to lose in a runoff election. Under the rules of the “jungle primary” the top two finishers will head to a runoff in December unless one of them manages to get more than 50% of the vote, which seems unlikely. Current polling indicates that Hyde-Smith and Espy will be the two finishers, and that Hyde-Smith will easily dispose of Espy in a runoff, but nothing is official until the votes are counted, and the runoff could end up being interesting if McDaniel somehow manages to displace Hyde-Smith as the Republican who heads to the December runoff. In a close battle for the Senate the outcome in Mississippi could end up being decisive.

So, not only is November 6th likely to be a long night, but it’s possible we won’t have all the answers about the midterms until late November or early December.