Legal challenges in multiple states could change how votes are counted in election, attorney says
Constitutional law attorney Katie Cherkasky comments on the Supreme Court's decision to allow Virginia to remove 1,600 non-citizen voters from its rolls and potential voting issues ahead of election day.
The countdown to election night is on. Officials across the country are preparing to count tens of millions of ballots.
Every state reports votes differently, and that means the candidate in the lead in any race can change throughout election night and the days after.Â
For example, a state that reports votes from cities and suburban areas is likely to appear more Democratic in the early parts of the evening but become more Republican as rural areas report.
MILLIONS OF VOTERS HAVE ALREADY CAST BALLOTS FOR NOV. 5 ELECTION
Similarly, states that report their in-person votes first might look like they’re going for the Republican candidate. When they start reporting mail ballots, the overall Republican lead can diminish or become a Democratic lead. This was the "red mirage" in several battleground states in the last presidential election.
Former President Donald Trump and Vice President Harris are seen in a side-by-side compilation photo. The countdown to election night is on, and officials across the country are preparing to count tens of millions of ballots. (Getty Images)
Counting often takes longer in highly populated states.
Fox News will make a projection of a race when the data indicates a clear winner and there is no scenario where the trailing candidate will overtake the leader.
This guide to ballot counting in the seven battleground states uses Associated Press reporting of the process in each state and aligns with Fox News’ analysis of previous returns.
Returns could look different in this year’s election. We expect fewer Americans to vote before election day, and Democrats and Republicans appear to be less divided on how they cast ballots. And as this guide explains, some states have changed their ballot counting processes since 2020.
Most importantly, every state has measures in place to ensure votes are counted correctly and securely.Â
Elections officials regularly test ballot counting machines, track the location of ballots, and use measures ranging from barcodes to watermarks to ensure that only eligible voters can vote.
Arizona
In Arizona, ballots cast and processed before Election Day are the first to be reported after polls close. These ballots have tended to favor Democrats, ever since the issue of early and mail voting became highly politicized during the 2020 election.
In Arizona, ballots cast and processed before Election Day are the first to be reported after polls close. (Fox News)
Mail ballots that are delivered on Election Day take much longer to tabulate because election workers do not begin processing or verifying them until after polls close. In Maricopa County, which has the state’s largest population, about 20% of the nearly 1.6 million votes cast in 2022 were mail ballots dropped off on Election Day.
In Arizona, recounts are automatic if the vote margin is 0.5% of the total vote or less.
Mail ballots that are delivered on Election Day take much longer to tabulate because election workers do not begin processing or verifying them until after polls close. (Fox News)
Georgia
Georgia state law allows county elections officials to begin tabulating mail ballots at 7 a.m. on Election Day. As a result, the first votes reported on election night will include many of these mail ballots as well as early in-person votes. Overall, these ballots have tended to favor Democrats, ever since the issue of early and mail voting became highly politicized during the 2020 election. This suggests that the Democratic candidate in a competitive contest could take an early lead in the vote count in the initial vote reports after polls close, even though the race may tighten considerably as more votes are tabulated.
Georgia state law allows county elections officials to begin tabulating mail ballots at 7 a.m. on Election Day. (Fox News)
There is no automatic recount provision in Georgia, but a losing candidate may request a recount if the margin is less than or equal to 0.5% of the total vote.
The first votes reported on election night in Arizona will include many mail ballots as well as early in-person votes. (Fox News)
Michigan
A new law gives local elections officials more time to process and tabulate absentee mail ballots, which should help alleviate the logjam that slowed ballot counting in the 2020 presidential election.
Cities and towns with at least 5,000 people may begin processing and tabulating ballots up to eight days before Election Day, while smaller jurisdictions may begin the morning before Election Day.
A new law gives local elections officials more time to process and tabulate absentee mail ballots, which should help alleviate the logjam that slowed ballot counting in the 2020 presidential election. (Fox News)
In 2020, more than 3.1 million voters cast their ballots by mail, about 56% of all ballots cast. State law at the time prevented election workers from opening the envelopes and preparing ballots for the count until the night before Election Day. Trump took an early lead in the vote count on election night, but that lead began to erode overnight and early Wednesday morning, and Biden took the lead later that afternoon.
The law change may result in a speedier release of mail voting totals and may mitigate the so-called "red mirage" that Trump falsely claimed was evidence of voter fraud in Michigan and in a handful of other key states.
Recounts are automatic in statewide races in Michigan if the margin between the top two candidates is 2,000 votes or fewer. Candidates may request and pay for a recount regardless of the vote margin, and the state covers the cost if the recount changes the outcome.
Recounts are automatic in statewide races in Michigan if the margin between the top two candidates is 2,000 votes or fewer. (Fox News)
Nevada
Nevada conducts its elections predominantly by mail. In 2021, the state adopted a law requiring mail-in ballots to be automatically sent to active voters, making permanent an emergency measure implemented during the COVID-19 pandemic. In the midterm elections the following year, about 80% of voters cast their ballots in-person before Election Day or by mail.
Mail ballots that are postmarked by Election Day will be counted if they are received by Nov. 9, four days after Election Day. With a large number of mail ballots potentially arriving after Election Day, the outcome of some highly competitive races might not be determined until these additional mail ballots are received and tabulated. State Republicans challenged this law, but a federal court dismissed the lawsuit in July. In recent elections, votes counted after Election Day have been heavily Democratic.
Nevada conducts its elections predominantly by mail. (Fox News)
Although most ballots are cast by mail, voters have the option of voting in-person at a polling place on Election Day. The state does not release any vote results until the final voter in line has cast a ballot, which could be well after the time polls formally close.
Nevada does not have an automatic recount law, but candidates may request and pay for a recount within three days of the county or statewide canvass, regardless of the vote margin.
The state of Nevada does not release any vote results until the final voter in line has cast a ballot, which could be well after the time polls formally close. (Fox News)
North Carolina
North Carolina has a track record of counting votes relatively quickly, leaving only about 1% of the vote uncounted after election night. This year, the count could be slowed in some areas due to the aftermath of Hurricane Helene. State elections officials approved emergency measures in nearly 30 western counties and tribal areas, giving voters additional options for turning in their absentee ballots.
North Carolina has a track record of counting votes relatively quickly, leaving only about 1% of the vote uncounted after election night. (Fox News)
State law allows county elections officials to begin tabulating mail ballots before the polls have closed on Election Day. As a result, the first votes reported on election night will include many of these mail ballots. Overall, these ballots have tended to favor Democrats, ever since the issue of early and mail voting became highly politicized during the 2020 election. This means that the Democratic candidate in a competitive contest could take an early lead in the vote count in the initial vote reports after polls close, even though the race may tighten considerably as more votes are tabulated.
There are no automatic recounts in North Carolina, but candidates may request and pay for one if the margin is less than 0.5% of the total votes or 10,000 votes for statewide races or 1% for non-statewide races.
North Carolina state law allows county elections officials to begin tabulating mail ballots before the polls have closed on Election Day. (Fox News)
Pennsylvania
Several factors contributed to a relatively slow vote counting process in Pennsylvania. Under Pennsylvania law, elections officials must wait until 7 a.m. ET on Election Day before they can begin to process ballots cast by mail and prepare them to be counted. The release of mail voting results cannot begin until after polls have closed. Because of the overall volume of mail ballots — they comprised almost a quarter of the total vote in the 2022 midterm elections — and the varying amounts of time it takes the state’s 67 counties to tally these votes, determining a winner in a highly competitive race could take several days, as it did in the 2020 presidential election.
Under Pennsylvania law, elections officials must wait until 7 a.m. ET on Election Day before they can begin to process ballots cast by mail and prepare them to be counted. (Fox News)
The first vote results reported after polls close are expected to come from mail ballots. Results from later in the night are expected to be a mix of mail votes and votes cast in person on Election Day. Once the vote counting stretches into the day after Election Day and beyond, the vote results are once again expected to come mostly from mail ballots.
Overall, votes cast by mail have tended to favor Democrats, ever since the issue of early and mail voting became highly politicized during the 2020 election. This means the Democratic candidate in a competitive contest could take an early lead in the vote count in the initial vote reports after polls close, even though the race may tighten considerably as more votes are tabulated.
In Pennsylvania, races with a vote margin of 0.5 percentage points or less are subject to an automatic recount.
The first vote results reported after polls close in Pennsylvania are expected to come from mail ballots. (Fox News)
Wisconsin
In Wisconsin, the first vote results reported on election night tend to be a mix of ballots cast on Election Day and in advance. In the April presidential primaries, more than a third of counties reported most or all of their vote results in their first vote report of the night — including in-person Election Day votes as well as mail-in and early votes.
In Wisconsin, the first vote results reported on election night tend to be a mix of ballots cast on Election Day and in advance. (Fox News)
But larger counties, including the Democratic strongholds of Milwaukee and Dane, took much longer. Their first vote update of the night included only a small share of the total votes cast. In a close race, that likely means waiting for final results in both places to know who has won the state.
In the April presidential primaries, more than a third of Wisconsin counties reported most or all of their vote results in their first vote report of the night — including in-person Election Day votes as well as mail-in and early votes. (Fox News)
Recounts are not automatic in Wisconsin, but candidates may request and pay for one if the vote margin is less than a percentage point.
The Associated Press contributed to this report.
