Lengthy ballot counting and a surge of legal disputes are expected to delay the final results of the 2026 midterm elections, with control of Congress potentially undecided for weeks after Election Day.
Explainer Election Integrity in America: Safeguarding Voter Trust and Ballot Security
Election officials in two key Senate battleground states have warned that determining winners could take days or even weeks, as more than a dozen states continue to count mail ballots arriving after Election Day and litigation over voting procedures intensifies.
This uncertainty comes amid heightened scrutiny of election integrity and ongoing partisan clashes over voting rules, with both parties preparing for protracted legal fights and close races in several states.
Early Voting and Party Edges
As of October 29, 43.6 million Americans had already cast ballots, according to the University of Florida's Election Lab, with 20 million voting by mail and 22 million in person. Registered Democrats currently lead in early voting, holding a 44% to 31% edge over Republicans overall. The gap narrows for in-person early voting, where Democrats lead 39% to 32%, but widens in mail voting, with Democrats at 46.5% and Republicans at 30.5%.
In competitive Senate states, Democrats have a 5.4% early voting advantage in Kansas and a 4.9% edge in Iowa, while the margins are slimmer in Maine (1.6%) and North Carolina (1.2%). A 2024 Pew Research Center poll found that 39% of Republicans prefer to vote in person on Election Day, compared to 28% of Democrats.
Post-Election Legal Maneuvers
Democratic lawmakers, staffers, and liberal organizations have formed a task force with prewritten legal briefs and extensive contacts to challenge actions by the Trump administration and local officials accused of "election denial rhetoric," according to NPR. The Elias Law Group and Democracy Forward, both led by Democratic election lawyer Marc Elias, are central to these efforts.
Federal officials have also taken action. In July, U.S. Assistant Attorney General for Civil Rights Harmeet Dhillon warned all 50 states that knowingly allowing noncitizens to vote could result in criminal liability. In October, Acting Deputy Attorney General Trent McCotter told California officials that tabulating ballots from individuals identified as noncitizens could make them "aiders and abettors to a federal crime."
"Any election officer, including the chief election officer of the state, who knowingly retains noncitizens on the stateβs [state voter registration list] or facilitates noncitizens in receiving and casting ballots could be subject to criminal liability."
β Harmeet Dhillon, U.S. Assistant Attorney General for Civil Rights
The Center for American Progress, a liberal think tank, argued in an October report that states would not recognize qualified immunity for federal employees acting on orders to review ballots and machines, warning that federal personnel could face criminal and civil liability under state laws.
California recently prevailed in a district court ruling, upheld by the U.S. 9th Circuit Court of Appeals, rejecting a Justice Department demand to set aside 20,000 mail-in votes from likely noncitizens until citizenship could be verified. The Democratic Senatorial Campaign Committee has countersued in U.S. District Court for the District of Columbia to block the Justice Department's efforts to set aside suspected noncitizen ballots and to challenge DOJ warnings as intimidation. Chief Judge James Boasberg, an Obama appointee, is presiding over the case.
State-Specific Delays and Lawsuits
The Supreme Court has allowed states to continue counting mail ballots arriving after Election Day. Illinois and Utah count ballots up to 14 days post-election, Alaska and Maryland up to 10 days, and California, New York, and Oregon up to seven days. Washington state, where the Justice Department claims 405 likely noncitizens voted by mail, has no specified deadline for receiving ballots.
In Alaska, officials expect to count votes until at least November 18, with certification of ranked choice voting results likely delayed until November 25. The Justice Department has sued Alaska over the "Decoy Dan" case, where Daniel J. Sullivan is running against incumbent Republican Sen. Daniel S. Sullivan. The DOJ asked U.S. District Judge Sharon Gleason to delay certification of a potential Mary Peltola victory until the impact of the other Sullivan's candidacy is investigated.
Maine's Secretary of State Shenna Bellows said certification of the Senate race between Republican Sen. Susan Collins and Democrat Troy Jackson will likely be delayed at least a week due to the presence of six declared write-in candidates and the state's ranked choice system.
Supporters of the Justice Department's actions argue they are necessary to ensure election integrity, while critics, including some state officials and Democratic groups, contend the federal interventions amount to intimidation and overreach. The Democratic Senatorial Campaign Committee's lawsuit seeks to block what it calls "intimidation" of state election officials.
