This presidential election is full of mixed messages, reminding us that the United States is a diverse and divided country.
Turnout was over 67 per cent of eligible voters – the highest in a century. More than 70 million Americans voted for Donald Trump, 7 million more than in 2016, a tally surpassed only by Joe Biden with 74 million votes (and many more to come from California’s slow vote count).
Biden already leads Trump nationally by 2.8 percentage points, bigger than Clinton’s final 2.1 point margin over Trump in 2016.
It is in the electoral college that this election is close, with slates of electors allocated to the winner of the vote in each state.
Biden appears to be on track to win a majority of delegates, bringing Wisconsin and Michigan and perhaps Pennsylvania back into the Democratic column, possibly flipping reliably Republican Arizona and Georgia.
With narrow wins in Wisconsin, Michigan and Pennsylvania, Trump won the electoral college in 2016, defying opinion polls that had him behind in those states by four to seven points.
In the end, the 2016 election was decided by less than 78,000 votes, spread across those three states, just 0.08 per cent of all votes cast. It is likely that 2020 will be decided by a similarly infinitesimal sliver of votes, perhaps coming from just one or two final states.
In the end, the 2016 election was decided by less than 78,000 votes, spread across those three states, just 0.08 per cent of all votes cast. It is likely that 2020 will be decided by a similarly infinitesimal sliver of votes, perhaps coming from just one or two final states.
No one expected this election to be this close. Over the course of the campaign, I repeatedly urged caution in interpreting swing-state polls, unsure that the underestimation of Trump’s strength in midwestern states had been eradicated, making the election much closer than polls were suggesting.
Poll averages had Biden up by 8.4 points in Wisconsin; he currently leads by 0.6 points. In Michigan, the final poll average was Biden by 7.9 points versus an actual lead of 2.6 points. These are not small misses.
My cautionary advice to colleagues and journalists was that if the 2016 poll error was replicated, Biden would probably win, if narrowly. That may come to pass.
But no matter the outcome, Trump has electoral strength that has been vastly underestimated again, along with his hold on the Republican Party.
Incumbent Republican senators in both of the Carolinas, in Maine, Iowa, and Kentucky had staggering sums of money thrown against them, literally hundreds of millions of dollars. All were easily returned.
Democratic hopes of flipping state legislatures in Pennsylvania, North Carolina, Michigan, Iowa and Texas all evaporated, along with hopes of controlling those states’ redrawing of congressional district boundaries in 2021.
Gerrymandering is here to stay. Democratic gains are therefore are at the state level, where gerrymander has no influence: picking up two Senate seats (Arizona and Colorado).
Trump has added the polls to his list of grievances about the likely result. Calling out specific polling firms and their errors, he described polls under-estimating his electoral strength as forms of “election interference”, as “[voter] suppression polls” designed to demobilise his base of supporters.
Election law experts are generally sceptical about the prospects for litigation to reverse Biden’s provisional, and soon to be official, wins in Wisconsin and Michigan, or the wins the Democrat may eke out in Pennsylvania or Georgia.
But one should never infer conspiracy, nor impute malice, when sloth and incompetence suffice.
Trump has also promised a “lot of litigation”, alleging voter fraud and improprieties in vote counts. But his Friday press conference had a tone of resignation to it, a listing of grievances more than a call to arms.
Election law experts are generally sceptical about the prospects for litigation to reverse Biden’s provisional, and soon to be official, wins in Wisconsin and Michigan, or the wins the Democrat may eke out in Pennsylvania or Georgia. Litigation on Trump’s behalf has not been successful in stopping the vote counts thus far.
Election officials have ploughed on with their work, almost surely aware that once processed and tallied, and once vote counts are complete, the prospect of successful legal challenges rapidly diminishes. Michigan has finished counting and is now moving to its certification of the statewide result.
Various states give candidates the right to recounts if the final tallies are sufficiently close; like all things to do with American elections, these statewide recount requirements and procedures vary tremendously.
But the Trump campaign has signalled it will avail itself of recount provisions in Wisconsin, the margin there sitting inside the recount trigger threshold of 1 per cent.
Trump and his supporters have openly talked of the Supreme Court intervening. This seems unlikely at this stage. Until a clear, constitutional claim can be made, state law and state courts are the first port of call in litigating US election matters.
If Trump does lose, a further stress test awaits American democracy. We are on the verge of this election being over, at least in terms of the counting of votes. But elections aren’t truly over until a loser concedes
The federal courts have not been especially receptive to claims that constitutional questions are in play at this stage, or that state officials or state courts have acted contrary to state law.
The Supreme Court’s intervention in the 2000 election – ending vote counts and the certification process in Florida, ensuring George W. Bush’s win over Al Gore – came well over a month after election day, with the court's conservative majority holding that Bush’s rights to equal protection under the law were being violated by the prolonged consideration of (in their view) ballots of dubious validity.
The long drawn-out back and forth in Florida state courts was itself a trigger for the Supreme Court's intervention and rapid resolution of Bush v Gore in 2000.
Just days after the 2020 election, most experts are struggling to see the basis for a Bush v Gore type intervention from the Supreme Court.
I concur with the balance of expert opinion that what we are seeing is garden-variety vote counting. What is distinctive is the huge number of votes cast, along with the fact that mail and early voting were overwhelmingly utilised by Democrats.
A similar phenomenon was observed in the 2018 midterms, so notable that election specialists gave it a name: an election night “red mirage”, followed by a “blue shift”. Biden slowly running down Trump’s leads as votes are counted was predicted by analysts on both sides of politics.
If Trump does lose, a further stress test awaits American democracy. We are on the verge of this election being over, at least in terms of the counting of votes.
But elections aren’t truly over until a loser concedes. And democracies aren’t truly democracies until executive authority is transferred by – or from – a losing incumbent.