What happens if Texas is too close to call between Trump and Biden on election night?
Texas is a battleground state in the presidential election for the first time in decades. Recent polls have shown both President Donald Trump and Joe Biden with leads as narrow as 1%. On Oct. 25, statistician Nate Silver’s FiveThirtyEight website found the polling average for Trump and Biden to be even at 47.5% each (the average changed into a 1%-2% lead for Trump in subsequent days). Lt. Gov. Dan Patrick, who said in September Trump would win Texas “without a doubt,” acknowledged this week the race “could be tighter.”
But how close would it actually have to be for Texans to go to sleep on election night Tuesday — or in the early hours Wednesday — and not have a clear idea of which candidate is projected to win the state? And if the projected result is as close as polls have indicated, what would happen if the election is disputed in the forthcoming weeks?
Here’s what you need to know, from the likelihood of finding out Texas’ projected winner on election night to the reasons why Gov. Greg Abbott has authority to determine the winning candidate in the case of a disputed election.
How early will we officially know who won?
We never know the official winner on election night. Texas’ result for the presidential race will not be official on Tuesday or even Wednesday.
In Texas, domestic mail-in ballots received by 5 p.m. the day after the election can still be counted. Mail-in ballots from overseas still count if they are received within five days. And mail-in ballots from military voters count if they are received within six days. Provisional ballots, filed by voters who cannot prove they are registered when they try to vote, can be counted up to within six days if they are deemed valid.
About a week after the election, once these deadlines have passed, election offices start a process called canvassing. They total up the uncounted mail-in votes and provisional votes and check for any irregularities before submitting an official vote count. When all the counties have canvassed and the governor canvasses their returns, the state certifies the election.
The presidential winner becomes official in December by the votes of a slate of electors, the Texas segment of what we know as the electoral college. Earlier this year, state Republicans and Democrats nominated their own slate of 38 electors. If Trump wins the official Texas vote, the Republican slate makes Texas’ pick; if Biden wins, the Democratic slate makes the pick. Federal law mandates the electors submit their choice on the Monday after the second Wednesday in December, which is Dec. 14 this year. Texas’ electors are not obligated by state law, federal law or the Constitution to pick the candidate chosen by the majority of Texans.
So why do we hear about ‘winners’ on election night?
On election night, the general public typically learns the projected winner of the presidential race in Texas from the candidates themselves or various media outlets, most prominently the Associated Press. The AP, which sends 4,000 representatives to offices across the U.S., projects a winner based on available tabulated totals from Texas counties and exit polls.
Since Reconstruction, Texas has provided scant drama on election night. The only time a presidential candidate won by fewer than 2 percentage points was in 1968, when Democrat Hubert Humphrey beat Republican Richard Nixon — in a three-way race with George Wallace — 41.14% to 39.87%. In 2016, when Trump beat Hillary Clinton by 9 percentage points — the closest margin since 1996 — media outlets started calling Trump the projected winner around 8 p.m., an hour after polls closed in most of the state.
How will mail-in ballots, higher turnout affect vote counting?
Turnout in this year’s election will be higher than at any time in recent history. But much of the work in tabulating results in Texas’ biggest counties gets done early. Election staff can verify signatures and start processing and scanning mail-in ballots before election day. In the period between the end of early voting and election day, the counties may begin importing and counting the mail-in ballots, as well as the early vote totals.
When the polls close, at 7 p.m. Tuesday, Tarrant County elections administrator Heider Garcia said counties can print a PDF indicating the early vote and mail-in vote totals and release it online. The early totals should be ready at 7 p.m. election night, regardless of the increase in early votes and mail-in ballots, he said. Some 8.5 million Texans had voted early either by mail or in-person as of Oct. 28, compared to 6.6 million in 2016 during the entire early voting period. About 900,000 mail-in ballots had been returned, already double the 450,000 counted in Texas in 2016.
“In a nutshell nothing is going to get delayed because of volume,” Garcia said.
But in Tarrant County there has been an issue because of error. The scanners have been unable to read the bar codes on what Garcia expects will be 12,000 mail-in ballots. Garcia told the county commissioners the information from the ballots would be recopied and the votes would still count. He said the election office would be working to recopy them, potentially in time to be added to the totals on election night.
On election night, counties report vote totals to the Texas Secretary of State and to the public as they are counted after the polls close. Long lines because of high turnout may delay the counts. But election officials and party officials said the increased number of early voters and mail voters has reduced the odds of election day gridlock. The in-person early vote and mail-in vote as of Oct. 28 had nearly equaled the 8.9 million Texans who voted in 2016 and represented about half of Texas’ registered electorate.
Unless the race is extremely close, Garcia said he is confident Texas will know its projected winner Tuesday night or in the early hours of Wednesday. What would qualify as extremely close? Basically if the margin of victory could be overcome by countable post-election day mail-in votes and provisional votes, as well as any earlier votes that have been delayed. That margin, according to state and local elections officials and past data, would have to be razor-thin.
In 2016, Texans filed roughly 67,000 provisional ballots and about 12,000 were accepted, according to data sent by the state’s counties to the U.S. Election Assistance Commission. The number of domestic, military and overseas mail-in ballots that arrived after election day but still counted is harder to approximate because the state didn’t track the data. But according to an election official at the state level, the number of valid mail-in ballots that came in after election day in 2016, combined with the accepted provisional ballots, totaled around 70,000. Garcia estimates that between provisional votes and an influx of post-election day mail-in ballots it would be unlikely more than 100,000 votes could be added to the statewide total.
Texas has not had a presidential margin that close in recent decades, but many other states have. In 2016, Wisconsin was decided by about 23,000 votes and Pennsylvania by 44,000 votes.
Nationally, the projected winner may be unknown on election night. Many states, like Pennsylvania and Michigan, do not begin processing mail-in ballots until election day.
“For the most part we expect to sit in front of our TVs and learn who the winner is,” said Paula Poindexter, a University of Texas journalism professor who has researched the media and presidential elections. “That’s not going to happen this year. It’s not going to happen because there’s so many ballots being cast.”
Could Texas have a recount for the presidential race?
State law mandates an automatic recount only in the most unlikely of circumstances: a tie between candidates. And if a tie is verified after a recount then a second election is held.
But candidates may file for a recount if they lose by fewer than 10% of the total number of votes the winning candidate receives. In a race with 11 million votes cast, which might be the sum for Trump and Biden, a margin of defeat of about 500,000 votes or fewer would meet the legal threshold for a recount. According to the Texas Election Code, candidates must file for the recount within five days after the election or two days after canvassing ends.
With Republican dominance in major races the last 40 years, statewide recounts are a rarity. In 1978, a statewide recount was initiated by Democrats in losing races against Republican Gov. Bill Clements, who won by 0.8 percentage point and 17,000 votes, and U.S. Sen. John Tower, who won by 0.5 percentage point and 12,000 votes. In 2018, Ted Cruz, who won the Senate race with 4.26 million votes, defeated Beto O’Rourke by 2.6 percentage points and about 200,000 votes, a total within the recount-eligible threshold. But O’Rourke did not file for a recount.
Although recounts in major races have been almost nonexistent, they happen almost every election in state legislature and other local races and likely will this November with many tight down-ballot races.
How else could the race for president be challenged?
Texas elections — including the presidential election — do not have to end after a recount.
“If (a recount) doesn’t turn out to be satisfying to the parties, which under current circumstances I doubt it would be, you could file a formal election contest,” said James Gardner, a law professor at the University at Buffalo School of Law who has researched and written about U.S. election law, including Texas law.
The Texas Election Code stipulates candidates can file for an election contest if they believe the official vote count is inaccurate either because votes were illegally excluded (such as through voter suppression or intimidation) or because illegal votes were counted (such as through fraud). They can file for a contest as early as the day after the election or as late as 10 days after the official results are determined.
In most local races, election contests are determined by district courts. For statewide seats like governor and lieutenant governor, the state legislature determines the outcome of the contests.
Presidential races are different. According to the Texas Election Code, the governor decides an election contest of presidential candidates. So if Biden or Trump — dissatisfied with the original vote total or a recount — filed an election contest, the law states Gov. Greg Abbott would be required to preside over a hearing, listen to the evidence for why the candidates believed votes were not valid and make a ruling. His decision would determine whether the Democratic or Republican slate of electors was chosen for Texas’ electoral college vote and effectively determine the winner of the presidential election in Texas.
“The governor has exclusive jurisdiction of a contest of presidential electors,” Gardner said.
He said the presidential candidates may already have potential grievances ready for filing a contest, given the litigation regarding mail-in ballots and drop off points the last several months. He said, for instance, the bar code issue with Tarrant County mail-in ballots could be used by a candidate to allege a systemic problem that needs to be investigated throughout the state.
“It’s important to distinguish here between what’s required to make a claim — which is almost nothing — and what’s required to make a successful claim, which one hopes would be more,” Gardner said. “Although, with the governor appearing to be the relevant decision-maker, it may not actually take more, depending on who is raising the issue. I don’t see any reason why Texans should have confidence that the governor would be able to set aside partisanship in order to apply his judgment impartially, as election contest laws clearly presume.”
The process of a Texas election contest would undoubtedly be challenged. Lawsuits would be filed in state and federal court, as happened during the Florida recount in 2000. Among the lawsuits, according to Gardner, would be a federal challenge of Texas’ election contest law, especially the power granted to the governor. In many states, the state legislature has power.
The late Steve Bickerstaff, who oversaw Texas’ gubernatorial recount effort in 1978 and was regarded as the state’s pre-eminent election law expert, noted the potential conflict inherent in Texas’ election contest law in 2001. “Curiously, an election contest over presidential electors in Texas is decided after an evidentiary hearing by the Governor,” he wrote. “In other words, if Texas law had been applicable in Florida in 2000, it would have been Jeb Bush who would have been designated by statute to hear the Gore election contest.”
What happens if legal challenges extend into December?
In 2000, when the U.S. Supreme Court decided 5-4 that the recount could no longer proceed, Al Gore conceded the election. The decision landed in time to meet the deadline for when Florida’s electoral college electors had to be selected. But a dispute over the winner of an election could linger past the deadline.
Gardner said the best consensus for a law resolving this scenario — a law he regards as “poorly drafted and confusing” — is The Electoral Count Act of 1887. It was drafted more than 130 years ago and has never been used. The relevant portion of the Act (“Determination of controversy as to appointment of electors”) is one long sentence that consists of 133 words and defies succinct explanation.
According to Gardner, it essentially says the electors of a state that is in dispute are determined as finalized if at least six days before the December deadline the court or governing body allowed by state law to resolve an election contest has selected a slate of electors. This is known as the safe harbor provision. In Texas, as explained above, the governor has power to determine the winner of an election contest.
To summarize: By Gardner’s interpretation, if the presidential election in Texas is still in dispute as of the Dec. 14 deadline, its slate of electoral college electors would be finalized based on the governor’s choice, if Abbott makes a determination by Dec. 8.
But numerous challenges could arise under this situation. Individual Texas electors, although they have been chosen for the Democratic and Republican slates with expectations they will toe the party line, may be dissatisfied with the process and submit a protest vote. And Congress, when it convenes in January, could potentially change or nullify a disputed state’s electoral college votes, if at least one senator and one member of Congress mount a challenge.
There is no precedent for what might happen. “To describe the situation as murky is a gross understatement,” Gardner said.
How likely is a disputed election in Texas?
A recount and election contest will likely only happen if the Texas vote is extremely close. Additionally, they would likely only happen if the national vote was also close, to the point where Texas and other battleground states — like Florida in 2000 — could shift the outcome of the election.
But Gardner says he would not be surprised if a recount or an election contest were filed somewhere in the United States, potentially in multiple states. “If it’s within the recount range there will clearly be a subsequent recount and probably a contest,” he said. “I don’t even know what the margin would be to discourage a contest, and (such a margin) is probably not possible in the battleground states.”
Brandon Rottinghaus, a University of Houston political science professor who researches Texas politics, cannot think of an election contest being filed in a major Texas race in recent decades. He said contests are exceedingly rare because candidates do not want to be viewed as distrusting the electoral outcome. Such a challenge would jeopardize their ability to win future races. But Rottinghaus acknowledged the 2020 Biden-Trump election is different, given the legal actions regarding mail-in ballots and Trump’s remarks that he will not accept the outcome of the election if he loses. “I think you would definitely see a challenge if the conditions allowed it,” he said. “The stakes are too high for either party to back away.”
He added: “Hopefully none of this will happen. But it might.”
This story was originally published October 30, 2020 at 6:00 AM.
