LEGALcurrents®

Tuesday, November 3, 2020, was election day across the country.  Normally, the day after we have detailed results or predictions on the likely outcome.  This year, with the COVID-19 pandemic, we have seen an unprecedented number of early and absentee votes.  These votes, and the varying rules that determine when these votes are counted, means that it may be several days, or even weeks, before results are officially certified and confirmed. 

What we do know at this time is that there was unprecedented voter turnout across the country.  There were around 100 million votes cast before election day.  For comparison sake, in 2016, there were 57.2 million absentee and early voting ballots cast.  Some of this major increase is because many states, like New York, had early voting for the first time for the 2020 elections, but much of the increase is because of a large uptick in absentee ballots being cast because of the COVID-19 pandemic. The majority of early votes came from absentee ballots with about 2/3 of the early votes coming from those (62.1 million) and 1/3 from early voting (35.5 million).  When you add in Election Day voter turnout that is projected to be around 50 million votes, this means that total votes were the highest they have been in over a century with about 65% of eligible voters, or 150 million voters, voting in this election. For comparison sake, in 2016, there was also strong voter turnout with about 60% of eligible voters, 137 million, turning out for the vote. 

With all of the focus on early voting and how it will impact the results, there are not concrete results today.  However, as of this update, we do know that in New York, both the Senate and Assembly will remain under Democratic control.  While we don’t know the exact breakdown right now, we do know that there will not be a change in the balance of power in Albany for the next legislative session. 

Absentee Voting
2.5 million New Yorkers requested an absentee ballot.  For comparison sake, in 2016, only 400,660 absentee ballots had been requested.  As a result of the pandemic, the legislature passed, and the Governor signed, a bill that allowed fear of contracting COVID-19 as one of the reasons to request an absentee ballot.  This is the primary reason that we are seeing such a high number of absentee ballots this year.  Of the 2.5 million absentee ballots that were sent out, the Board of Elections has received back around 1.2 million.  Voters in New York must have their ballot postmarked by Election Day to have their vote counted, and the ballots must be received by election officials by November 9.  This means that there are still absentee ballots in the mail that have not yet been received.  Further, per New York law, the absentee ballot count cannot begin until November 10, once all absentee ballots are received.  While this will not impact the outcome of the Presidential election results in New York, the absentee ballot results will impact a variety of state and congressional legislative races that are very close and will be decided by the absentee ballots.

Early Voting
Early voting numbers were around 2.5 million or around 20% of registered voters in New York.  Early voting ended on Sunday, November 1.  There was such overwhelming turnout for early voting that many polling places throughout the state saw long lines that led to a wait to vote, and many polling places added extended hours to meet the demand.  In New York City, lines to vote were up to four hours long for some voters.

Overall, the voter turnout in New York, between absentee ballots, early voting, and in person voting on Election Day is projected to be higher than the 2016 voter turnout of 7.8 million.  It could be close to 9 million votes for 2020.

State Elections
2020 is an election year for all 213 members of the New York State Assembly and Senate.  As a reminder, in New York, all members of the Assembly and Senate run for reelection every two years. There is no distinction in term length between the two houses like there is at the federal level.

As noted above, we are not expecting any major changes in the control of the two houses.  In 2018, we saw a substantial change in the New York State Senate when control of the house flipped from Republican to Democrat.  The one issue we are watching in the Senate this year is whether the Senate Democratic majority will pick up two more seats, which would make them veto proof.  The Assembly has been veto proof for a number of years.  If the Senate were to also become veto proof, this would mean that if the two houses passed a bill that was subsequently vetoed by the Governor, the two houses would have the votes to override the Governor’s veto.  This override power has the potential to alter the power dynamic in the state between the executive and the legislature.

While we won’t see a major change in the composition of either house in New York, we do know that there will be many new faces in Albany next year. Between retirements, primary and general election losses, members running for other offices, and members moving on to other jobs, we will see at least 36 new faces between the two houses.  There are 63 Senators and 150 Assemblymembers, for a total of 213, so we could see a net turnover of about 20% of the legislature.  While this is not an unprecedented level of turnover, it will mean that there will be a lot of new officials and potentially new committee chairs for next year in each house.

Federal Elections
In addition to the state-level races, there were races for U.S. President, all members of the U.S. House of Representatives, and eighteen seats in the U.S. Senate.  Obviously, the race being watched most closely was the Presidential election.  The results of the Presidential election are very close and will come down to the final vote counts in a handful of key swing states.  As such, a winner has not yet been called and perhaps will not for several more days.

Unlike all other elections in the United States that are decided by the popular vote, the Presidential race is decided by the Electoral College.  To officially win the election, a candidate must win a majority of the electoral votes.  The Electoral College has 538 electors, with each state getting as many electors as it has members of Congress, and with Washington, DC getting three electors.  A candidate needs to receive 270 Electoral College votes to win the Presidency.  If no candidate receives a majority vote, the House of Representatives chooses the President, and the Senate chooses the Vice President.  The members of the Electoral College do not meet until December 14 to cast their formal ballots.  Even once this is done, the winner of the Presidential election is not official until January 6 when there will be a joint session of Congress in the House Chamber and the new Congress certifies the election results. Once certified, the winner will be inaugurated on January 20, 2021. 

The math of winning a majority of the Electoral College votes is why so much attention is given to swing states.  A swing state is a state that can reasonable be won by either candidate or does not tend to trend in one party direction from race to race.  Going into election night, we could reasonably guess that President Trump had 115 Electoral College votes locked in while Vice President Biden had 212 Electoral College votes meaning there are 211 votes, from 16 different states, still to be decided. 

Most of the swing states are winner take all, meaning that the winner of the state’s popular vote will get the state’s electoral college votes.  However, Nebraska and Maine apportion their Electoral College votes by congressional district, meaning their votes can be divided between different candidates.  By very definition, a swing state will see very close election results in any given year.  With this year seeing unprecedented absentee and early voting, countin g those votes will take time.  Counting is further complicated by the fact that each of these states has their own rules on when a ballot can be returned, and how and when it can be counted.  If we see legal challenges to election results, those challenges will be based on the various state laws that govern when and how to count ballots.

In addition to watching for the final results of the Presidential election, we are closely watching several Senate races that are also too close to call.  At the federal level, the U.S. Senate has a Republican majority of 53 - 47.  There are 35 Senators up for reelection this year, 23 Republicans and 12 Democrats.  For the Democrats to win the majority, they need to gain 4 seats if President Trump is reelected and 3 seats if Vice President Biden is elected.  Most of the Democratic seats are considered safe seats, but of the 23 Republican seats up for reelection, the majority are considered competitive, so these races are being followed very closely.  Of note, if the Democrats were able to win a majority in the Senate, the Senate Majority Leader would be Senator Chuck Schumer, who is the senior Senator from New York.

All members of the U.S. House of Representatives were also up for election this year.  While there are several outstanding races in that House as well, it is not anticipated that the election results will impact the Democratic majority control of the House. 

While there is no set decision on what the 2021 legislative session will look like, and no idea on whether we will convene again in person at some point next session, per the New York State Constitution, the Governor is slated to deliver his 2021 State of the State address on Wednesday, January 6, 2021. 

We will be sure to update you on key races of importance and if the State of the State address schedule changes.  If you have additional questions about this LEGALcurrents, please reach out to a member of our Government Affairs practice group for assistance:

Amy J. Kellogg
John M. Jennings


Attorney Advertising. Prior results do not guarantee a similar outcome. This publication is provided as a service to clients and friends of Harter Secrest & Emery LLP. It is intended for general information purposes only and should not be considered as legal advice. The contents are neither an exhaustive discussion nor do they purport to cover all developments in the area. The reader should consult with legal counsel to determine how applicable laws relate to specific situations. ©2020 Harter Secrest & Emery LLP

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