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• No candidate will “be over 290 electoral votes” on Election Night, because electoral votes aren’t cast until Dec. 14 and won’t be counted until Jan. 6.
• Beyond that, media outlets won’t be projecting winners in any battleground states until there’s adequate information for them to do so confidently. If a state hasn’t counted enough votes from mail ballots to have a sense of how mail voters are breaking between the candidates, media organizations won’t call the states.
• It would be inaccurate to count a “too close to call” state as going for Trump (or Biden) even if partial returns show that candidate leading.
With Election Day almost here, an adviser to President Donald Trump’s campaign went on national television to paint a rosy picture of how the incumbent’s chances of winning will look on Election Night — and to accuse Democrats in advance of trying to rip away his reelection.
"If you speak with many smart Democrats, they believe that President Trump will be ahead on Election Night, probably getting 280 electoral (votes), somewhere in that range, and then they're going try to steal it back after the election," Miller said. "We believe that we will be over 290 electoral votes on Election Night. So no matter what they try to do, what kind of hijinks or lawsuits or whatever kind of nonsense they try to pull off, we're still going to have enough electoral votes to get President Trump reelected."
We can’t predict the future, but Miller’s assertion that Trump "will be over 290 electoral votes on Election Night" is dubious on several levels. Electoral votes won’t be cast for more than another month, for one.
The early, partial returns could in fact be relatively favorable to Trump, because many states are faster at counting Election Day in-person votes than mail ballots. And in 2020, the method of voting has demonstrated a partisan skew.
For months, Trump has criticized mail balloting, which has made Republicans more likely to decide to cast their vote on Election Day. For instance, a national USA Today Suffolk University poll found that of the one-third of all voters who said they were planning to vote on Election Day, 48% were Republicans, more than twice as large as the Democratic share of 20%.
With in-person ballots being disproportionately counted and reported first, it could look on Election Night that Trump is ahead in some battleground states, such as Michigan, Pennsylvania, and Wisconsin.
Miller’s decision to focus on these early returns "sets up the Trump campaign, on Election Night, to go with either ‘I won’ or ‘we don’t know yet, but I won,’" said Colorado State University political scientist Kyle Saunders. "In turn, that uncertainty leaves the window open to interpretation and even judicial action after the fact that could affect the outcome."
However, declaring victory after just a fraction of the votes are counted would be like declaring you’ve won a football game at the start of the fourth quarter in a close game.
Miller is wrong to suggest that only legal "hijinks" can justify counting ballots after Election Night. As we’ve noted, this not only includes ordinary mail ballots but also overseas military ballots and provisional ballots, the late-counting rules for which are enshrined in both federal and state law.
In fact, federal law allows states until more than a month after the election to finalize their results.
Electoral votes are not cast until Dec. 14, and Congress officially counts them on Jan. 6.
So at the very least, Miller should have said that Trump would have enough states "called" in his favor on Election Night to add up to 290 electoral votes.
However, even this assertion is problematic.
Media organizations, primarily the television networks and the Associated Press, have "decision desks" that determine when enough results are available to allow them to "call" a race. No decision desk recommends a call when the race is close and when just a fraction of the total has been reported — and especially this year when they are well aware that ballots cast by mail might have quite different patterns of results than ballots cast in person.
"The network decision desks are not going to make projections based on partial information or without a complete portrait of what the electorate is in a state," said ABC News political director Rick Klein. "The first wave of election results will not be enough for any media organization to make a projection. We’re very dialed in to that reality."
So, states that are rated as "too early to call" or "too close to call" by media organizations can’t simply be put into the tentative leader’s column of states they’ve "won." Designating states as too close to call is done specifically to avoid giving a candidate premature ownership of a state’s result.
To reach 290 electoral votes on Election Night, Trump would need to have the media call every state that's safe or likely to support Trump for the president, plus each of the following states that are considered significantly in play (and which in some cases have Biden polling leads): Texas, Ohio, Georgia, Iowa, North Carolina, Maine's 2nd congressional district, Florida, Arizona, Nebraska's 2nd congressional district, Pennsylvania, and Wisconsin. (Both Maine and Nebraska allocate electoral votes to each of their congressional districts, and one district in each state is considered to be in play between the candidates.)
It’s also unlikely that enough information would be available to decision desks on Election Night to make a call in at least some of those states, especially Pennsylvania and Wisconsin. In Pennsylvania, counties say they might not start counting mail ballots until the day after the election.
"Election administrators are going to do their very best to do things as accurately and as quickly as they can, but they are limited in their resources," Saunders said. "These things just take time."
The Trump campaign did not respond to an inquiry for this article.
Miller said, "We will be over 290 electoral votes on Election Night ... no matter what they try to do, what kind of hijinks or lawsuits or whatever kind of nonsense they try to pull off."
No candidate will "be over 290 electoral votes" on Election Night, because electoral votes aren’t cast until Dec. 14 and won’t be counted until Jan. 6. Beyond that, Miller is miscasting how media organizations will call races for one candidate or the other on Election Night.
Media outlets won’t be calling any battleground states until there’s adequate information to do so with confidence. If a state hasn’t yet counted enough votes from mail ballots to have a sense of how mail voters are breaking between the candidates, media organizations won’t call the states for either candidate; they’ll call it "too early to call" or "too close to call." It would be inaccurate to count a media organization’s "too close to call" state as part of either the Trump column or the Biden column, even if partial returns show that candidate ahead.
We rate the statement False.
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Jason Miller, remarks on ABC’s This Week, Nov. 1, 2020
National Archives, "The 2020 Presidential Election Provisions of the Constitution and U.S. Code," accessed Nov. 1, 2020
New York Times, "How Long Will Vote Counting Take? Estimates and Deadlines in All 50 States," Oct. 31, 2020
PolitiFact, "Donald Trump wrong that a winner has to be announced Election Night," Oct. 28, 2020
Email interview with Kyle Saunders, Colorado State University political scientist, Nov. 1, 2020
Email interview with Rick Klein, political director at ABC News, Nov. 1, 2020
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