Tight race between Kamala Harris and Donald Trump could lead to lengthy count

WASHINGTON — Expect to wait a few days before Democrat Kamala Harris or Republican Donald Trump is declared the winner — unless the dozens of polls showing the presidential race close or tied in the seven swing states turn out to be badly wrong.

New Yorkers also might have to wait to learn who won in the state’s seven competitive races for U.S. House seats, including the challenges on Long Island to Reps. Anthony D’Esposito (R-Island Park), Nick LaLota (R-Amityville) and Tom Suozzi (D-Glen Cove).

"I do not expect to go to bed on election night knowing who won. There will be trends, perhaps there could be surprises," said Trevor Potter, president of the Campaign Legal Center, a nonpartisan legal organization that seeks to protect and improve democracy and voting.

Barry Burden, a University of Wisconsin political science professor and director of the Elections Research Center, added, "Even unofficially, it may be a few days until we have a very good sense as to who has won."

The key reason: Most of the seven swing states that will almost certainly determine the outcome of the presidential race have laws, procedures or traditions that will prolong the process of counting the votes in Tuesday's election.

In 2020, The Associated Press and the major networks did not call the election for Democratic candidate Joe Biden until four days after the election.

This year’s presidential election could be the closest since 2000, when Republican George W. Bush defeated Democrat Al Gore by 537 votes in Florida after the Supreme Court on Dec. 12 stopped the count. That gave Bush 271 electoral votes — one more than needed.

Long count

States have nearly five weeks to count the votes in presidential elections before they must certify them. Some of the decisive swing states — Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin — tend to prolong their counting.

In 2020, Biden won six of those states, losing only North Carolina. This year, Burden told Newsday, "All seven of them are true toss-ups. They could all go either way."

In some states, the counting of mail ballots has caused delays in determining the election outcome. Use of mail ballots rose in 2020, during the pandemic, but it could drop this year.

Pennsylvania and Wisconsin do not allow their boards of elections to process mail ballots before Election Day, sometimes causing delays. Arizona allows preprocessing, but mail ballots dropped off on Election Day significantly delayed the count in 2020.

Voter identification laws also prolong the count. The signature verification requirement in Arizona caused nearly a weeklong delay in its 2020 count, and the same is expected this year.

Close races also drag out the count in many states. Wisconsin has a history of close elections that result in recounts that take time to complete. Georgia also has had close elections that resulted in time-consuming recounts.

Some states allow extra time for mail ballots to arrive. Nevada accepts mail-in ballots for four days after Election Day.

Legal challenges

Like in 2020, Republicans have filed scores of lawsuits to shape election law to their advantage. The Republican National Committee has filed more than 130 lawsuits on everything from voter registration to ballot-counting to certification of results.

"We are seeing a lot of litigation around the election already, and we were expecting that," said Danielle Lang, an attorney at the Campaign Legal Center. "Unsurprisingly, the hot spots are the swing states."

But Lang and other attorneys say the Electoral Count Reform Act, a law passed in 2022 in response to the legal firestorms in swing states in 2020, will limit the kind of lawsuits that extended the battles over the 2020 election.

A key target of Republican legal challenges is noncitizen voters. Democrats downplay them as relatively rare. Burden said courts have rejected those cases because they have come too late or because there is not a national register of U.S. citizens to check voter rolls against.

Early results

On election night, The Associated Press and major news networks will call the race for many congressional seats and possibly the presidency based on the unofficial vote tallies that show a strong lead for one of the candidates.

But the presidential election winner will not be official until each of the 50 states certify their electors’ votes on Dec. 11, those state electors meet on Dec. 17 to cast their votes, and Congress on Jan. 6 meets to count and certify the votes of the Electoral College.

In New York, if one of the congressional races becomes too close to call, the final outcome could be delayed as long as two or three weeks after Election Day.

The first unofficial — and incomplete — election results that include in-person early voting and the mail ballots will come out after the polls close at 9 p.m. Tuesday, according to the State Board of Elections.

But the final vote must wait until the county boards of elections count mail and absentee ballots that can arrive until Nov. 12, and military and overseas ballots that can arrive until Nov. 18 — as long they are postmarked by Nov. 5.

The election results must be certified by the county boards by Nov. 30 and the state board by Dec. 9.