The final votes in the midterm election will be cast late Tuesday night in Alaska and Hawaii as the last polls in the country close, but we probably won't know the names of all the winners for days, weeks or potentially months after that.
Nate Silver's sophisticated election model has the Republicans winning 15 House seats by two points or less, margins that could be swamped by the errors in the polls underlying the predictions. Similarly, some Senate races are very close, and the write-in candidacy of Alaska's incumbent Senator Lisa Murkowski makes counting ballots in that race particularly challenging.
Very close results will trigger demands for recounts and challenges based on alleged voter fraud or ballot-counting errors. Both parties and independent groups have been training election-protection volunteers for Tuesday and gearing up for legal action on Wednesday. The election law practices of Washington, D.C. law firms are already busy, and Republicans and Democrats have deployed lawyers around the country to carry out carefully crafted "post-election strategies" to help shape the outcome of individual races in the weeks to come.
The parties are also urging the public to get involved in the election-protection process. People can get anti-voter fraud cellphone applications that enable them to upload photos and report problems as a kind of freelance election defense. The Brennan Center for Justice has been tracking media reports of more organized efforts to combat "voter fraud" and the possibility that such efforts may actually result in voter suppression. Conservative groups have spearheaded most, if not all of these efforts, but the rhetoric around voting is equally heated on both sides. The Department of Justice is already conducting an investigating in Harris County, Tex., where early voting triggered both efforts to combat voter fraud and claims of voter suppression.
Watch What You Wear to the Polls
Some grassroots tactics have run afoul of the rules in various states. Minnesotans cannot wear Tea Party gear or "Please ID Me" buttons when they vote, and if they do, they can be charged with a misdemeanor. Nonetheless, the group organizing the button-wearing effort is urging its members to ignore the judge's ruling and wear the buttons anyway.
Similarly, voters in Georgia are prohibited from wearing Tea Party gear when they vote, just as Democratic and Republican gear can't be worn. Tea Partiers complain that since they are not part of a registered party, the rule shouldn't apply to them.
In Connecticut, a corporate election effort risks violating criminal election law. The Department of Justice has warned World Wrestling Entertainment that it can't give voters free t-shirts or other gear because Linda McMahon, the company's co-founder, is running for Senator. Federal election law makes it a crime to give voters anything for their votes.
And, of course, something as uncalculated as ballot design or a voting machine can also create huge headaches, as veterans of Florida 2000 will remember: hanging chads, butterfly ballots, etc. Now the concerns include the integrity of electronic voting machines, and more prosaically, election workers' and voters' competence in using them.
The Results Will Stand
States to watch for recount potential include Washington, Illinois, Nevada, Pennsylvania, Alaska, Colorado, Ohio and West Virginia, among others. However, recounts are triggered only when the margin of victory is much less than 1% -- and they rarely change the outcome. (Let's leave the 2000 Presidential election Florida recount out of this, because it's recount process was open to attack on so many fronts, and ultimately not completed.) So, despite all the hype, and the chance that recounts actually are triggered, I'm betting the results announced tomorrow will stand the test of time. That doesn't mean they'll be accepted by everyone.
Given the angry mood of the country, the unusually high number of contested House seats (districts are generally drawn to protect incumbents), and the possibility that control of the Senate is also up for grabs, it's hard to imagine the vote-casting process that ends today will leave most people believing that voting was fair. Particularly once all the votes are counted, and people desperate for a victory discover they have lost.
The small turnout, which should draw the most upset voters, however, won't be a focus of the post-election rage. In presidential elections, around half of the eligible voters cast their votes, meaning the winner has the formal support of about a quarter of our citizens. In midterm elections like this one, the turnout is sharply lower, dropping to perhaps one-third of eligible voters.
As a result, even if the Republicans win an overwhelming majority of the votes cast, their "mandate" will come from far less than half our citizenry -- just as President Obama's did.