Why Can Some States Announce Results on Election Night, But Others Can't?

Ben Ginsberg takes me through key swing state vote-counting policies

Jul 03, 2024

States have different rules over when early votes are allowed to be received, processed, and counted.
Close elections are more likely to take longer to call.
As a result, don’t be surprised if Michigan, Pennsylvania, and Wisconsin don’t have a clear winner on election night in November 2024.

The 2020 presidential election did not go smoothly. If instead there had been prompt reporting of election results, some of the doubt and conflict that we saw as a result of election results changing over days as mail-in ballots were counted might have been avoided.

Some states were able to announce their results on election night (even Florida, which changed its voting laws following the 2000 presidential election debacle), but others required days to announce their winner.

We do a lot of elections in the United States. Why can’t we know the results on the night of the election?

Enter: Ben Ginsberg, Election Lawyer Extraordinaire

To figure it out, I interviewed Ben Ginsberg. Ben is an election lawyer with decades of experience. In fact, he was general counsel to the W. Bush campaign in 2000 and helped write the briefs that ultimately went in front of the Supreme Court.

I know Ben because he is a visiting fellow at the Hoover Institution and he hosts the excellent Saints, Sinners, and Salvageables podcast about American elections. He’s the co-chair of EOLDN, the Election Official Legal Defense Network.

He’s also co-written a piece called “Restoring Confidence in American Elections” with Bruce Cain for the Hoover Institution’s Tennenbaum Program on Fact-Based Policy.

The podcast version is here.

Ben Ginsberg and Bruce Cain’s paper is here.

Here’s How Florida Announces Results on Election Night

In short:

Florida ends early in-person voting three days before the election in order to process and count all early votes and have them ready by election day.
It also doesn’t allow mail-in ballots to be dropped off at voting precincts on Election Day (but voters can take them to local voting elections offices).
Mail-in votes have to be received by 7pm on election day.

Plus one more very important factor: The margin of victory was large enough (3.4% for Trump) that there didn’t need to be lengthy recounts along the way.

States Have Different Rules About When Mail In Ballots Must Be Received

Florida is one of 31 states that require absentee (or mail-in) ballots to be received by election day.

Source: National Conference on State Legislatures

Table 11 from the National Conference on State Legislatures (NCSL) lists out all of the receipt and postmark deadlines for absentee/mail ballots. Take a look to see what your state requires. (A list of all the tables from NCSL is here.)

As I mentioned to Ben, these battleground states require mail-in ballots to be received by election day:

Arizona, Georgia, Florida, Michigan, Minnesota, North Carolina, Pennsylvania, and Wisconsin.

Of the battleground states, only Nevada allows mail-in ballots to be received after election day.

The Difference Between “Processing” and Counting Ballots

Just because mail-in ballots may need to be received by election day does not mean they will be counted by election day.

That’s because ballots that are received need to be “processed” and then counted.

What is processing? As NCSL notes:

“Processing” means different things in different states, but typically the first step is to compare the signature on the outside of the return envelope with the voter’s signature on record to ensure a match.
In some states, once the signature is verified the envelope can be opened and the ballot prepared for tabulation by removing it from the envelope, flattening it and stacking it with other ballots. Some states may allow ballots to be run through the scanner, as well, but without hitting the “tally” button to actually obtain results.

Counting means just what you think it means. And everywhere it is a felony to release the early counting results before polls close.

Some States Allow Ballots to Be Processed and Counted Early. Others Do Not.

Thirty-nine states allow absentee/mail-in ballots to be processed before election day.

Eight states and Washington DC only allow processing to begin on election day:

Alabama, District of Columbia, Michigan, Mississippi, New Hampshire, Pennsylvania, South Dakota, West Virginia and Wisconsin.

Counting follows processing. Twenty-four states allow counting to begin on Election Day.

Fifteen states and Washington DC, do not allow counting to begin until the polls close:

Arkansas, California, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, West Virginia, Wisconsin and Wyoming.

What about those lists stand out?

In 2020, Michigan (2.8%), Pennsylvania (1.2%), and Wisconsin (0.6%) were all decided by less than three percentage points.

Michigan and Wisconsin didn’t call their states for two days.

Pennsylvania officially declared Joe Biden its winner on November 24th, 2020.

If the 2024 election is close, we could be in for another long wait to declare a winner.

A Preview of the Processing and Counting Rules for the 2024 Battleground States

(Full table here.)

Arizona:

Processing begins upon receipt.
Counting begins immediately upon processing, but results cannot be released until all precincts have reported or one hour after polls close.
Current RCP Margin: Trump 4.5%
2020 Result: Biden 0.3%

Georgia:

Signature verification upon receipt; further processing begins at 8 a.m. on the third Monday before Election Day.
Counting: Eighteen days before Election Day, but results cannot be released until after polls close
Current RCP: Trump 4.2%
2020 Result: Biden 0.2%

Michigan:

Processing: At 7 a.m. on Election Day
Counting: At 7 a.m. on Election Day; anyone with access must sign an oath not to disclose information until polls close.
Current RCP: Trump 3.3%
2020 Result: Biden 2.8%

Minnesota:

Verification upon receipt; after close of business on the 19th day before the election, verified ballots can be opened and deposited in a ballot box
Counting: After the polls close on Election Day
Current RCP: Biden 2.3%
2020 Result: Biden 7.1%

Nevada:

Signature verification upon receipt
Counting: Fifteen days before Election Day; counting must be completed by 7 days after election; results may not be reported until polls close
Current RCP: Trump 3.2%
2020 Result: Biden 2.4%

North Carolina:

Processing: At county board meetings beginning the fifth Tuesday before Election Day; counties using optical scan devices may remove ballots from envelopes and place in tabulators
Counting: 5 p.m. on Election Day, unless a resolution is adopted at least 2 weeks prior to allow counting to begin at 2 p.m.; results shall not be announced before 7:30 p.m.
Current RCP: Trump 4.2%
2020 Result: Trump 1.3%

Pennsylvania:

Processing: 7 a.m. on Election Day
Counting: At 7 a.m. on Election Day, but votes may not be recorded or published until polls close
Current RCP: Biden 0.5%
2020 Result: Biden 1.2%

Wisconsin:

Processing: After polls open on Election Day
Counting: After polls open on Election Day
Current RCP: Trump 1.0%
2020 Result: Biden 0.6%

Why Did Maricopa County Have Issues in 2020 and 2022 If It Processes and Counts Votes Early?

In short: Even though Arizona allows processing and counting of early mail-in ballots, it also allows its those mail-in ballots to be dropped off on election day. As a result, election officials were not prepared for how many ballots they had to count in short order.

Here is Maricopa County Recorder Stephen Richter talking in 2022 about the number of ballots dropped off changing over time: Stephen Richer Talking About Dropping Off Mail In Ballots.

What About Ballot Harvesting?

As Ben said in our talk, some states allow one person to collect and return multiple ballots. Here is the NCSL state-by-state summary:

Some states, such as Alabama, state that only the voter must return the ballot. Others, such as Rhode Island and Wyoming, do not explicitly specify who may or may not return a ballot on behalf of a voter. In 33 states, however, someone other than the voter is explicitly allowed to return a voted ballot on behalf of another voter. Many of these states limit this provision to a family member, household member or caregiver. Seventeen states allow a voter to designate someone—not necessarily a family member, household member or caregiver—to return their ballot for them.

Ben’s suggestion was that instead of mailing out live votes to everyone, states should send out requests for mail-in ballots along with some sort of verification requirement.

This is an issue I’d like to look into a bit more and speak about with election officials from each side of the aisle.

Voting Reforms After the 2024 Election

Why not before? The Purcell Principle is a Supreme Court doctrine that says election laws shouldn’t be changed close to elections, since it could cause confusion or distrust in the results of the election.

Following 2024 though, Ben’s advice is to wait and see how the election goes to identify any problems to fix. As he points out in his piece with Bruce Cain, prompt reporting of election results is good for confidence and trust in elections. I’m moving that up on my priority list of goals for election rules.

Let me know if you have questions for Ben or me on election issues. We’ll handle them in a future talk.

Sources Used

State-by-state tables of election rules. National Conference on State Legislatures.

Federal election results. Federal Election Commission.

Tom Church

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