Today is Election Day, and people in 34 states are holding Senate elections (in Oklahoma and South Carolina, both seats are up for grabs). But we might not know whether the GOP has succeeded in retaking the Senate for days — or even weeks. Here are five reasons why.
1) Slow and late counts
The first reason we might go to bed without knowing who won is, simply, that some states might not have counted enough votes yet. Some states start their counts later because they keep their polls open longer, and returns from Western states will come in very late in East Coast time . Other states just count more slowly, either because they have spread-out rural populations, or because of inefficiency.
When the race looks fairly close, and not enough votes are in, media organizations will usually be hesitant to "call" a race. In the 2008 Oregon Senate race, Jeff Merkley ended up beating his opponent by 3.3 percentage points, but due to slow vote-counting, that margin wasn't immediately clear, and his race wasn't called until two days after Election Day.
Sometimes, the wait can be even longer. Senator Mark Begich of Alaska is up for reelection this year — and when he last ran, in 2008, his race wasn't called for two weeks. Alaska is a huge state, with ballots being cast in many sparsely-populated areas. So if Begich's race is close again, we could be waiting on Alaska's vote count for quite some time.
Regardless of how quickly the count goes, if the race is close enough, many states require a recount. In some states, there are specific automatic thresholds to trigger state-funded recounts. In others, candidates or voters have to petition for a recount.
The National Conference of State Legislatures website to see what the rules are for your state. For the closest Senate states, only two have rules for automatic recounts. Alaska's occurs in the case of an exact tie. Colorado has a more complex formula for determining whether a recount occurs, but it will basically only happen if the top two candidates are separated by just a few thousand votes. Whether recounts happen in the other key Senate states will depend on whether the loser petitions for one.
In Al Franken's incredibly close 2008 Minnesota Senate election, his post-recount margin was a mere 225 votes — a margin that was 0.007 percent of the total vote cast. During the recount, lawyers on both sides contested hundreds of ballots, and most of those went to Franken.
So his opponent, Senator Norm Coleman, argued that there were irregularities in the recount that swung the result — and filed suit in court. The resulting legal battle lasted nearly 6 months, until the Minnesota Supreme Court ruled in Franken's favor in late June 2009. He was finally sworn in the following month.
Two states with contested Senate races — Louisiana and Georgia — have runoff laws, in which a candidate will only win on Election Night if he or she wins more than 50 percent of the vote. Otherwise, a runoff election will be triggered with only the top two vote-getters. Louisiana's would be in December, and Georgia's in January.
This could make it difficult to declare a victor in the battle for the Senate. In Louisiana, Democrat Mary Landrieu is considered highly likely to lose her eventual runoff. But she almost certainly won't lose outright on election night, because two conservative candidates are splitting the vote. In Georgia, a runoff isn't as certain but is quite possible, as a libertarian candidate has been picking up a few percentage points in polls of the close contest.
If control of the Senate still hangs in the balance, these runoffs will become nationalized. Conservative outside groups will spend millions arguing that a vote for the Democrat is now certain to keep the Senate in Harry Reid's hands, a potent argument in two heavily conservative states.
So if these races do go to a runoff, Democrats will likely have a tough time. Then again, both of these states are expected to go to the GOP anyway, so runoffs may prevent Mitch McConnell from locking down a majority for another month or more. And a runoff effectively resets the vote clock and will allow for weeks of additional campaigning, which could change voters' minds.
5) The independent
And then there's Greg Orman, the independent challenging incumbent Republican Pat Roberts in Kansas. If Republicans end up with a clear majority of 51 seats or more, or Democrats win 50 seats, Orman's decision won't determine party control. (Democrats only need 50 seats for a majority because Vice President Biden gets to cast tie-breaking votes.) He's said that he'll caucus with whichever party wins a clear majority in this case.
However, if the GOP ends up with 50 seats and the Democrats 49, Orman's decision on who to caucus with will determine which party has a majority. Orman's positions and financial backers seem to indicate he'd be more at home in the Democratic caucus, and most people assume he'll caucus with Democrats if his vote turns out to be decisive. But if he hopes to build a long-term political career in Kansas, siding with the GOP might be the better bet.
Considering that the likely runoffs in Lousiana and Georgia, and the possibility of slow counts and recounts in other states, might leave the control of the Senate up in the air for weeks or months, it's really unclear when Orman will make his decision.