Norms v Laws

Expecting to know the winner of the Presidential election before bedtime on November 3, 2020 is a norm–something that we have grown accustomed to over the past 50 years because most state-level elections are not close. Alabama will be a blow out for the Republican, California for the Democrat and so on. However, state laws govern elections for President because Article II, Section 1, clause 2 of the U.S. Constitution grants states the authority to determine how a state’s electoral college votes will be assigned.

All 50 states have chosen an election as the means of determining which candidate gets its electoral votes, with 48 of the 50 states having winner take all assignment (Maine and Nebraska apportion based on districts). Each state has detailed laws governing elections, including how and when the election results are certified, which is the official determination of which candidate gets a State’s electoral college votes, and not CNN or FoxNews making a projection. The earliest certification date is November 5, 2020 (Delaware) and the latest is December 11, 2020 (California). In North Carolina, the date is November 24, 2020.

When an election is not close, we “know” who won on election night, even if the official and legal process of certifying the winner takes up to 5 weeks.

If there are numerous close states this election, we will not know who won on election night. This may be somewhat unusual or upsetting, but we have detailed laws to govern close elections, including recount provisions. If the election is super close, lets all take a deep breath and follow the law.

About Don Taylor
Professor of Public Policy (with appointments in Business, Nursing, Community and Family Medicine, and the Duke Clinical Research Institute), and Chair of the Academic Council at Duke University https://academiccouncil.duke.edu/ . I am one of the founding faculty of the Margolis Center for Health Policy. My research focuses on improving care for persons who are dying, and I am co-PI of a CMMI award in Community Based Palliative Care. I teach both undergrads and grad students at Duke. On twitter @donaldhtaylorjr

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