Political Deputy – Here’s the good news: on January 20, 2021, we will inaugurate the President of the United States. The bad news: the road to get there might not be pretty.
With the uncertainty surrounding mail-in ballots, the questionability of accurate polls, and two political parties that really want their candidate to win, the outcome of the 2020 election could involve court cases and lawsuits, congress and the electoral college, or some combination of all the above.
But before we get into the details of what could happen, there are some important dates to set straight.
When will we know who won?
Technically, the answer to that question is January 6, 2021. But here’s a rough timeline of when everything will play out.
November 3 – Election day. Go vote.
November 21 – The last day California receives absentee ballots. The deadlines for when states receive absentee ballots vary widely. California is the most lax (up to 17 days after the election), but most states require that they receive mail-in ballots either on election day, or within just a few days.
Keep in mind, the Supreme Court is handing down rulings on this issue right now. Pennsylvania and North Carolina, for example, have extended their deadlines just this week. So, check your state’s deadline if you need to know when to send in your vote.
December 11 – Again, California is the squeaky wheel. This is the last day for election officials to verify the results. The specific dates for this deadline vary by state, but they all fall within the 41-day period between election day and December 11.
December 14 – According to Congress, “On the first Monday after the second Wednesday in December, the electors meet in their respective States to cast their votes for President and Vice President of the United States.” Whichever candidate receives over 270 votes on this day wins.
January 6 – Mike Pence convenes a joint session of Congress where they vote to confirm the election results. This is typically a formality, but who are we to expect even this to go smoothly.
January 20 – Inauguration Day. The president and vice president are sworn in.
Now, regardless of how close the election is or whether there is controversy in any states, these deadlines will be strictly adhered to. So, what can candidates who feel they’ve been robbed of an election do within this time period? A lot.
Can a losing candidate demand a recount?
In short, yes. In long, it varies from state to state. Again, much like the deadlines for receiving and counting ballots, states determine their own election laws. They decide the process, and if Trump or Biden believes they’ve lost a state unfairly, their response will vary based on the state.
Assuming either candidate has valid reasons for protest, each state has laws that determine how recounts work. For example, in 20 states—including Arizona, Florida, and Ohio—recounts happen automatically if the margin of victory is within a certain threshold (typically 1% or less). In addition to automatic recounts, in 42 states, candidates can seek a recount, provided they pay for all or part of the cost to do so, unless they’re declared the winners.
However, Hawaii and Mississippi don’t do recounts. In those states, lawsuits are the only options.
What would an election lawsuit look like?
First, let’s acknowledge that candidates can’t merely file a lawsuit that says, “This is unfair” or “Something feels fishy.” Courts require specific evidence of things like voter fraud, ballot dumping, technical malfunction of voting booths, or tampering with ballots. The possibilities for wrongdoing are endless, but for a lawsuit to go through, the evidence must be clear.
Again, in sticking with the entire theme of the election, states determine the process for how these lawsuits make their way through court. And, it’s up to the state judges to provide a ruling, provided that ruling isn’t appealed all the way to the Supreme Court, which could certainly happen. Of course, the most likely scenario involves a decision being made at the state level.
One example of this coming in 2010 when Senate candidate Joe Miller went to court claiming that write-in votes were improperly counted because many had misspelled the name of his opponent, Lisa Murkowski. In this case, the judge ruled that when voter intent was clear, spelling variations are allowed. And that was that.
Where does the electoral college come into all of this?
270. That’s the magic number. Referring back to our timeline, all electoral votes must be cast by December 14 and confirmed by both chambers of Congress on January 6.
Normally, the governor of each state is responsible for reporting to Congress regarding the results of the state’s electoral votes. However, in closely contested states, there is the possibility that the state’s legislature would be the one who’d end up reporting the results to Congress. Theoretically, both the governor and the legislature should report the same thing.
Then again, 14 states have divided governments—including Pennsylvania, Michigan, Wisconsin, and North Carolina. If the governor reports one result while the legislature reports another, who does Congress listen to? In the words of Benjamin Ginsberg, a lawyer who represented the Bush campaign in 2000,“It is fair to say that none of these laws has been stress-tested before.”
Another way Congress might get involved has to do with a 129-year-old law that creates another deadline known as the “safe harbor” provision. This law states that if electors fail to settle any disputes six days prior to their December 14 deadline, Congress can step in and make the call. This law actually came into effect in 2000 when the U.S. Supreme Court issued its decision in Bush vs. Gore claiming that time had run out.
Frankly, this type of situation is nearly impossible to imagine (and even harder to understand), but there’s no telling what laws may be finally put to the test.
So, what’s the worst-case scenario?
A contingent election is the most extreme of the possible results. In this instance, either both candidates have failed to reach the 270 necessary votes or Congress has failed to declare a winner by January 6. At this point, the 12th Amendment kicks in, meaning the House of Representatives selects the president and the Senate selects the vice president.
Both houses of Congress would have to make these selections by Inauguration Day on January 20, but even if they still fail, the Presidential Succession Act applies. That means the Speaker of the House would serve as acting president until a resolution was met.
Again, this situation is highly unlikely and something both parties would likely want to avoid, but we’ve come close to this before.
Has all of this happened in presidential elections?
Yes. Sort of. While some laws we’ve mentioned haven’t yet been stress-tested, some have. These are our historical precedents for contested elections.
1800 – This is the first Presidential election to go to the House of Representatives, what we outlined in our worst-case scenario. The candidates were Thomas Jefferson and Aaron Burr. After threats of violence on both sides, the House eventually selected Thomas Jefferson before passing the 12th Amendment which split the decision for president and vice president between the two houses of Congress.
1824 – It didn’t take long for the 12th Amendment to be put to the test when none of the four presidential candidates—John Adams, Henry Clay, William Crawford, and Andrew Jackson—received enough votes to win. In what is known as “the corrupt bargain,” Henry Clay swayed his votes toward John Adams, who then won and made Clay Secretary of State. The spurned Andrew Jackson came back and won in 1828.
1876 – Following the Civil War the election between Democratic New York Governor Samuel Tilden against Republican Ohio Governor Rutherford B. Hayes involved widespread voter suppression and intimidation, particularly of Black Republican voters. Thanks in part to the violence in Southern states, Tilden won the popular vote but fell short in the electoral college by one vote. With no precedent, Congress created a bipartisan commission that included members of the House, Senate, and Supreme Court, and four months later, Hayes was declared the winner.
2000 – Bush v. Gore is still near enough to remain in the memory of most voters. With Gore leading the popular vote by 500,000 votes, Florida was declared too close to call. Gore pursued manual recounts, but the Supreme Court ruled 7-2 that ballots couldn’t be subjectively tallied (“hanging chads’ left many voters’ intentions unclear) and 5-4 that no recount could be held prior to the day the Electoral College would officially cast their votes. Five weeks later, Bush won Florida by 537 votes and thus the presidency.
Hopefully, history provides a hint of solace that even in the unpredictable madness that may follow this year’s election, there are processes and systems set up to (hopefully) handle whatever comes next.
But if 2020 has shown us anything, it’s that normalcy may be nothing more than a faint hope from a distant memory. In any case, your voice matters. Vote.
SF Source Political Deputy Oct 2020