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How And When Are Votes Officially Counted?

ARI SHAPIRO, HOST:

One of the most contentious issues in this election has been how and when to count ballots. In this final week of voting, scores of lawsuits are working their way through the courts. Many focus on the deadline for counting. President Trump often argues that if there's not a clear winner on election night, the results of the election could be invalid.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: It would be very, very proper and very nice if a winner were declared on November 3 instead of counting ballots for two weeks, which is totally inappropriate. And I don't believe that that's by our laws. I don't believe that.

SHAPIRO: To be clear, American law does not require a winner to be declared on November 3. And to explain more about what the law does say, Wendy Weiser of the Brennan Center joins us now.

Good to have you here.

WENDY WEISER: Thank you for having me.

SHAPIRO: We're all accustomed to winners generally being announced on election night. Is that because of any official requirement?

WEISER: Absolutely not. In fact, the results that we hear on election night are not the official results. They're unofficial results. And this year, it might very well be the case that in many states, we don't even know who the winners are on election night or for days after Election Day.

SHAPIRO: Tell us what those unofficial results are based on that people are so accustomed to treating as if they are the final word.

WEISER: Well, the unofficial results that we get on election night are often just the initial results. They are based on the ballots that have been counted so far, typically the ones that are coming in from in-person voting. And in states that count their absentee ballots in advance of Election Day, we might get some of those as well. And it takes days for election officials, after receiving and processing ballots, to - often, to tabulate them, especially as we are going to see an increasing number of absentee ballots.

SHAPIRO: So if that tabulation takes time and there's not a result on election night, should people worry? Should that cast a shadow over the results or indicate any kind of a problem or crisis?

WEISER: No. People should actually be - rest assured that if we don't have results on election night, that's because election officials are doing everything they can to make sure that every vote counts. This year, we've had an unprecedented challenge to our election with the pandemic. And it's caused a large number of Americans to switch to voting by mail or absentee ballots. And those come in on paper ballots, and they take longer to process and to count than the ones that are happening on Election Day.

SHAPIRO: So that question of what it means to count every vote is being litigated right now, as we said. And on this program, we've talked about some of the high-profile lawsuits, including cases in Pennsylvania, Wisconsin, North Carolina. When we are this close to an election and many have already voted, should voters worry that a court might decide a case in a way that could invalidate their vote?

WEISER: Americans who've already voted should feel confident that their ballots are going to count. And really, you know, it is absolutely the case that - courts should not be changing the rules this late in the game. But there are steps that voters can and should take to make sure their ballots are not rejected. And if voters get their ballots in now on time and follow the instructions closely for filling out their ballots, they shouldn't have any problems regardless of anything a court does. The things that the courts are ruling are not going to impact your ballots if you get your ballots in on time and if you follow the instructions for filling out the ballot.

SHAPIRO: What does all of this say about the functioning of our democracy? Does this dispute - does this litigation mean that the system is working or that the system is teetering on the precipice?

WEISER: It is absolutely unacceptable in a modern democracy to have significant numbers of ballots cast by eligible voters tossed out because of technicalities. That doesn't mean that the system is illegitimate or the result is invalid. But it does mean we should take a close look at our election rules after this election and put in place some real voting reforms to make sure...

SHAPIRO: OK.

WEISER: ...That every eligible ballot counts.

SHAPIRO: Wendy Weiser, vice president of the Democracy Program at the Brennan Center, thank you for talking with us today.

WEISER: Thank you for having me. Transcript provided by NPR, Copyright NPR.