Election results likely to be delayed nationwide by state rules, litigation, and investigations

Counting or certification of the November election results are likely to be delayed nationwide, as states are promulgating different rules on receiving mail ballots, ongoing and likely election litigation, and possible investigations over irregularities, warns an election integrity proponent.

As the 2020 election results were delayed until Joe Biden was announced the winner of the presidential race the Saturday after Election Day, there will likely also be a delay in announcing this year’s presidential contest. The delays this year could be the result of a variety of factors, especially with such a close election, according to Honest Elections Project Executive Director Jason Snead.

Almost every credible poll indicates that the November election will be tight, as Vice President Kamala Harris does not have a significant lead over former President Donald Trump, particularly in critical "swing" states upon which the Electoral College may turn.

The RealClearPolitics polling average shows Harris just two points ahead of Trump in a national poll, with the vice president at 49.3% and the former president at 47.3%. The close race will take time to call, especially with several states allowing ballots to be counted days after Election Day.

Ballots after Election Day

The states and U.S. city that accept ballots after Election Day are Alaska, California, the District of Columbia, Illinois, Kansas, Maryland, Massachusetts, Mississippi, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Texas, Utah, Virginia, Washington, and West Virginia.

The states with the latest deadlines for accepting ballots after Election Day are Illinois and Utah, which are both 14 days.

Election results have already been delayed in some jurisdictions this year.

Detroit’s August primary election results were delayed because of a faulty firewall, causing election workers to drive the results across Wayne County, in which the city is located.

The firewall issues prevented local clerks from electronically submitting the results, so the clerks had to physically transport the results to downtown Detroit, said the county clerk's office, according to NBC News.

The results started posting online well after midnight.

The May primary election in Baltimore took two weeks to certify after Election Day because of counting the thousands of mail-in ballots and provisional ballots cast at in-person election voting locations for the Baltimore City Council races, The Baltimore Sun reported. Also, 584 extra votes were incorrectly reported on Election Day.

Third-Party vendor problems

Some jurisdictions experienced delays in posting the election results due to issues with third-party vendors.

In Florida counties, most notably Broward and Palm Beach, the third-party vendor’s servers were unable to handle the amount of traffic to the county elections websites that post the election results for the public to view, The South Florida Sun Sentinel reported.

Also, in Charles County, Mo., the third-party vendor the county retained had servers that were unable to sustain the website traffic where the election results are posted, according to First Alert 4.

States like Pennsylvania and Wisconsin have delays in reporting election results because mail-in ballots cannot be processed before 7 a.m. on Election Day.

Philadelphia Republican city commissioner Seth Bluestein said the odds of knowing the winner on election night are “almost zero.”

In 2020, it was four days before Pennsylvania was projected to break for Biden.

Wisconsin state election commissioner Ann Jacobs, a Democrat, said that the state’s election results will likely not be known until the morning after the election.

Litigation delays

Election litigation -- an almost certain eventuality -- may also delay the election results.

The June primary election results in New Jersey were delayed because a judge was asked to decide whether to count about 1,900 mail ballots from Atlantic County after the ballots were unsealed prematurely. The judge ruled to count the ballots that were cast in the congressional primary election.

As of last month, Republicans had filed more than 100 lawsuits regarding election rules. Meanwhile, Harris’ campaign told The New York Times in August that its election legal team has increased 10-fold over what Biden’s was in 2020.

Regarding election litigation, Honest Elections Project Executive Director Jason Snead told Just the News on Tuesday that since election results could be “delayed because of a rules change, you’ve just created a dynamic where either side can claim the election has been stolen.”

“Democrats and their allies rewrite the rules and change practices, while Republicans intervene to defend those rules,” Snead said. While there may be an “aggressive push by Republicans in the courts, it’s very different from Democrats. Both sides are obviously wanting to win, but one side wants to win by changing the rules, while the other side wants to win by following them.”

Two critical swing states

Snead also said that delays in election results will likely occur if the race is close. He noted that Arizona and Pennsylvania are the two swing states he is most concerned about.

Arizona’s most populous county, Maricopa County, with 4.5 million citizens, takes “days and weeks to tally votes because so many are mail ballots” that voters wait to drop off at voting locations on Election Day, Snead said. While Arizona allows ballots to be preprocessed before Election Day, it “almost doesn't matter if so many people are able to bring ballots on Election Day,” he added.

Snead told Just the News last month that mail ballots should be required to “come in the day before Election Day, or run your ballot yourself with ID.”

Meanwhile, Pennsylvania has not had “comprehensive reforms” like other states because of Democratic governor Josh Shapiro blocking election bills passed by the GOP-led legislature, Snead said Tuesday. 

As a result, “Pennsylvania might count votes for days after Election Day,” he explained. Shapiro, a finalist in Vice President Harris' beauty contest for a running mate, campaigned on a promise to veto any restrictions on mail-in voting. 

Another wild card is whether election boards have discretion over election certification. This could also impact when election results are finalized if there are concerns about discrepancies or irregularities, Snead said.

If an election runs smoothly, then the election boards would have no issues with certifying the election, he explained. However, if a “board deems the need for additional investigation,” there could be “some potential delays,” Snead added.

While there is an argument that the election “certification process is a pro forma exercise,” Snead doesn’t believe that is always the case. For instance, when alleged fraud was investigated in the 2018 race for North Carolina’s 9th Congressional District, a new election was called by the state election board.

“In that case, the proper course of action wouldn't be to certify the election,” Snead said.

“If there's evidence of something untoward that happened, it needs to be investigated,” he added. The “worst thing to happen in that case is saying all concerns of election integrity are illegitimate, take away all the power to investigate, and sweep the issues under the rug.”

Certification issues

Adding to the complexity nationwide, some election boards are required to certify election results. For example, last November, Michigan enacted a law to clarify that local canvassing boards must certify election results.

Following the delay in election certification in Delta County, Michigan state officials Secretary of State Jocelyn Benson (D) and Attorney General Dana Nessel (D) reminded local canvassing boards “of their ministerial duty to certify election results.” The Democratic officials noted that the Delta County board had been warned of the legal consequences they could face if they didn’t certify the election results, including a misdemeanor charge of Willful Neglect of Duty.

Snead said that the Michigan law takes “power away from one of the last bipartisan institutions in the state and consolidates it with state officials that are Democratic,” adding that it is a “power grab.”