The lack of a clear result means Americans — and the world — may not know who the next president will be for days at best. At worst, legal challenges could drag the contest out for weeks, an echo of the 2000 election that was ultimately decided by the U.S. Supreme Court.
As of Wednesday evening, Pennsylvania, Georgia, North Carolina and Nevada are still too close to call, with some officials saying it could take until the end of the week to count all the ballots.
Biden has since secured Michigan and Wisconsin, after those states worked through the night and into Wednesday counting millions of mail-in votes. The Trump campaign has filed lawsuits to stop vote counting in Michigan and Georgia, where Trump has a narrow lead, and has requested a recount in Wisconsin.
As of 10 p.m. ET, Biden had secured 264 electoral votes compared to Trump’s 214, according to an Associated Press tally. If Biden wins Nevada — a state he’s currently leading — he will secure the 270 seats in the electoral college necessary to win the presidency.
Here’s what’s expected to happen in the days to come.
Counting the ballots
Past elections have never been definitively decided on the night the polls close. While media organizations will project or declare a winner if results are swinging in a certain direction, states often spend days afterwards counting absentee ballots, including from military members overseas.
That’s even more true now, thanks to a momentous increase in early, absentee and mail-in voting due to the coronavirus pandemic.
According to the U.S. Elections Project, a nonpartisan website run out of the University of Florida that tracks county-level data, over 100 million Americans voted early — about 75 per cent of all votes cast in 2016.
Of those, over 65 million mail-in ballots have been received, while another 26.8 million mail-in ballots are still outstanding, according to the site.
The true amount of time we’ll have to wait until that deluge is combed through is not known, however, and depends largely on how the results continue to play out.
Other factors include when states were allowed by law to start opening and counting ballots. Fourteen states plus the District of Columbia were unable to start counting until after polls closed. One, Maryland, must wait until 8 a.m. Wednesday.
Pennsylvania, a crucial state for both candidates, has the vast majority of votes left to be counted. Many of those were cast by mail. At this point, there are more than 1 million outstanding ballots that electoral officials say will be counted over the coming days — most of them projected to be from Democratic-heavy areas. Trump currently holds a 170,000-vote lead.
In Georgia, officials late Wednesday that they hope to have all ballots counted by the end of the day.
Nevada stopped posting results Wednesday evening and said it would give its next update Thursday morning, which could significantly close the gap there.
Fifteen other states, including the contested states of Arizona and Ohio, were allowed to start counting mailed-in votes days or even weeks before Tuesday, but were barred from announcing results until polls closed and are continuing to count ballots.
An analysis by the New York Times found only nine states expect to have 98 per cent of their results announced by noon Wednesday, leaving the rest to play catch-up.
Extensions on ballots
Twenty-two states plus Washington, D.C., have allowed for extra time beyond Election Day for mailed-in ballots to be accepted by officials, provided that they were postmarked and sent before polls closed. Some of those deadlines are between one and two weeks after the polls closed Tuesday.
Republicans have taken some of those deadline extensions to court, asking that the extensions be struck down before the election, with mixed results.
After back-and-forth lower court rulings, the Supreme Court has allowed a three-day extension in Pennsylvania and a six-day extension in North Carolina. However, a six-day extension in Wisconsin was denied by the high court.
The emergency decisions were narrowly decided, with Pennsylvania’s even resulting in a tie, leaving the lower-court ruling that upheld the extension in place.
Yet in that same decision, the conservative justices led by Justice Samuel Alito opened the door for Republicans to renew their challenges after the election — meaning some late-arriving ballots could end up getting tossed.
Justice Amy Coney Barrett, who was confirmed and appointed to the Supreme Court last week, was not involved in any of these emergency decisions, which required a swift resolution.
A court spokesperson told the New York Times that Barrett “has not had time to fully review the parties’ filings.”
The legal wrangling over a few states’ voting rules could become the main narrative of the election in the coming days.
Trump said early Wednesday morning in a speech from the White House that he will “be going to the U.S. Supreme Court” and that he wants “all voting to stop,” even though voting did stop once polls closed. It’s not clear what argument the campaign would bring to the high court.
In a statement sent before 4 a.m. ET Wednesday, Biden campaign manager Jen O’Malley Dillon called Trump’s comments “outrageous, unprecedented and incorrect.”
O’Malley Dillon said the Biden campaign has”legal teams standing by ready to deploy to resist that effort” if the Trump campaign heads to the Supreme Court. And, she said, “They will prevail.”
The Trump campaign on Wednesday alleged they had not been given proper access to watch ballot counting in Michigan and Georgia. The Georgia Republican party said they plan to sue in a dozen counties across the state.
Roughly 300 lawsuits were already filed over the election in dozens of states across the country before Election Day even arrived, the Associated Press reports.
The New York Times has reported Biden’s campaign has a large legal team ready to counter any efforts by Trump’s team and other Republicans to contest election rules or ballot counting.
Accepting the outcome
Whenever the results are finalized, it will be up to both Trump and Biden to accept them, and for one of the two to concede to the victor.
Biden has said he will accept the results no matter what, even if Democrats end up in the courts fighting Republican challenges.
Yet Trump has openly questioned if he will do the same, particularly if he loses. He’s even gone as far as saying he will only lose if there is fraud, setting the stage for his supporters to react angrily and with violence if Biden wins.
Whatever happens, the Constitution is clear: the president’s term ends at noon on Jan. 20, when the next president is inaugurated.
If Trump loses and refuses to leave the White House after that date, the Twentieth Amendment says he won’t be president. Even if Biden is somehow refused access to the West Wing or can’t begin his term for any other reason, House Speaker Nancy Pelosi would take over the duties of president under the amendment.
The last time a U.S. election result was contested, voters had to wait for over a month before knowing who won.
The 2000 election came down to 537 votes in Florida that made the state too close to call between George W. Bush and Al Gore. Legal wrangling ultimately led to a recount, which was then stopped, restarted and halted again before ending up at the Supreme Court.
Finally, on Dec. 12 — 35 days after Election Day — the Supreme Court ruled to end the recount once and for all, and voted 5-4 to not send the case back to Florida’s courts.
The decision meant an earlier declaration that Bush won Florida was upheld, and Bush ultimately won the election despite Gore winning the popular vote.
Two other states, New Mexico and Oregon, were also too close to call on election night but were ultimately won by Gore, though it was not enough to surmount the Florida decision. Gore did not contest the Supreme Court’s decision and conceded to Bush.
In the case of 2020, a recount is mandated in several states if the margin between the top two candidates falls below a certain level. In some states, recounts can be requested if the margin falls below a certain level. In others, candidates can request a recount regardless of the margin between the top two candidates.
— With files from the Associated Press