If the race for president of the United States — or any other national, state or local race — is very close in Tuesday’s election, a number of constitutional and legal scenarios could come into play to help determine a winner.
Vote counts are expected to take much longer this year, with the COVID-19 pandemic driving a surge in early voting and mailed-in ballots. The population is passionately divided over support for GOP President Donald Trump or his Democratic challenger, former Vice President Joe Biden and the races that trail them down the ballot.
Given the unusual circumstances of the election, some results are likely to be challenged and could end up in court — perhaps even the U.S. Supreme Court.
Here’s a look what happens when disputes arise and how they might be resolved.
Given the dozens of lawsuits that have been filed over rules governing mail-in ballots before Election Day, experts feel the probability of legal challenges over them as the counting is underway is high, as well.
Representatives from each campaign have the right to be present during every step to ensure every ballot meets state criteria. They also have the right to dispute every judgment by election officials, which in theory could lead to endless rounds of arguments over such things as signatures and mismarked ballots.
While it’s unlikely any court would accept a challenge about the validity of mail voting itself, experts say there could be fights over what kind of mail-in ballots can be counted, said Jonathan Entin, a law professor at Case Western University.
“Some states have rules saying ballots must be received by close of voting on Nov. 3 — in others, they must be postmarked by a particular deadline,” he told UPI. “In some places, there is a ‘received’ deadline as well as ‘postmark’ deadline. Some of those deadlines are after Election Day, which could add to uncertainty.
“So, for instance, if ballots are postmarked correctly but not received until afterwards, that could be a challenge — and they can get contentious.”
The disputes could spill into the courts — perhaps, if the fate of the election is seen as riding on the results, to the U.S. Supreme Court.
Each state has its own process for governing recounts. Twenty-one states and the District of Columbia, for instance, provide for automatic recounts if the margin between the top two candidates is within certain parameters, ranging from a flat tie in some states to less than 1% of the vote in others.
“Automatic recount states” include the key swing states of Florida, Arizona, Michigan, Ohio and Pennsylvania.
In 43 states and the District of Columbia, a losing candidate, a voter, a group of voters or other “concerned parties” can petition for a recount.
Any recounts must be completed and the results officially certified by the secretary of state according to varying deadlines in different states — they range from as early as Nov. 5 in Delaware to Dec. 11 in California, while other states have no set deadlines, requiring only that certification be awarded as soon as the count is finished.
If a dispute from this year’s election reaches the U.S. Supreme Court, as it did in with Bush vs. Gore in 2000, it’s most likely to stem from this stage of the process, said Cynthia Lebow, a law professor at the University of California-Los Angeles and former general counsel and staff director for the U.S. Senate’s judiciary committee.
“We’re not going to have ‘hanging chads’ like in 2000, but there could be allegations of voter fraud, or mail-in ballots that somebody is challenging as being illegal…We don’t know what it may be,” she told UPI. “But if we can look at the 2000 case as a prototype or a template, the certification process is when a dispute is most likely to happen.”
After any recounts are completed and the vote is certified, the next step in the election process is the tabulating the electoral vote — 270 are needed to determine a winner.
Under the 1887 Electoral Count Act, the Electoral College must meet no more than 41 days after Election Day. That falls on Dec. 14 this year. Federal law also says if a state’s vote is certified by Dec. 8, the results are presumed final and electors — the state representatives who actually cast the official votes to certify election results — are sent to Washington in January, where the newly elected Congress will effectively sign off on the results.
There is nothing in the U.S. Constitution that requires electors to vote for the winner of their state’s popular vote, but most states do have laws that require electors to vote for the popular vote winner.
But because a state’s results may still be in dispute a month after the election, the language of the 1887 law could be interpreted to allow state legislatures to award the electoral votes to whichever candidate they deem the winner.
Another interpretation could confer electoral power upon the governor.
“It is possible in some states, specifically ones in which one party controls the legislature and the other holds the governor’s office, we will see competing sets of electoral votes,” Entin said. “At that point, it’s possible this could wind up in court, where there are a number of potential scenarios.”
If such a dispute made it to the U.S. Supreme Court, he added, it would probably land in Congress for a resolution, given Chief Justice John Roberts’ track record of avoiding overly political cases.
Most experts agree the competing slates of electors are an unlikely scenario, especially if the vote is anything but extremely close.
U.S. Supreme Court
Should a dispute over the validity of ballots, the status of electors or some other issue appear before the high court and its decision has the potential to affect the outcome of a close race, the question is how the losing party would react.
In 2000, Vice President Al Gore and most of his Democratic supporters accepted the court’s decision to, in effect, hand the presidency to George W. Bush by ordering a halt to a recount in Florida.
Twenty years later, political divisions are harsher.”Whatever you think of the politics, we have to recognize that’s an important piece of the background,” Entin said. “People are quite suspicious with the way things have been going with the Supreme Court. If it winds up with one or more of these cases and it makes what amounts to a party-line decision, it’s going to raise real legitimacy questions.
“The concern today is if Trump winds up on the short end of a decision, will he accept an outcome in which the Supreme Court rules against him? And whatever he says, will his supporters accept it?
“Most of them probably will, but maybe some of them won’t. And the ones who don’t, the concern…is that some of those people will respond violently.”
Lebow said the Republican push to nominate and confirm conservative jurist Amy Coney Barrett to the high court before the election has “cast a shadow” on the legitimacy and independence of the body, which may play a role in the public’s assessment of whether any decision regarding the election is fair.
“She would not commit to recusing herself [in an election case], and that has sort of thrown a question mark into the calculations,” Lebow said. “But, with that caveat, I’d say I have a level confidence that the courts will handle these things appropriately with the independence and neutrality that is the hallmark of our judicial system.”
Certification of results
The final stages of any drama over the transfer of power winner would come in December and January.
The Electoral College meets Dec. 14 and nine days later, its vote will be certified and recorded in the National Archives.
The newly elected members of the 117th Congress will be sworn in on Jan. 3, and three days later they will meet in a joint session to count and certify the election results.
The new U.S. president is to be sworn in on Jan. 21.
Trump has flatly said if he loses the election it would be the result of fraud — although studies concur that mail voting is secure — and many Democrats expect he would not leave office easily.
After saying in a televised town hall meeting this month he would accept a peaceful transfer of power, last weekend he again hinted that he may not hand over power peacefully, telling supporters at a rally in Centerville, Ohio, that he was not treated fairly by the Obama administration.
The Republican-led Senate last month unanimously passed a resolution reaffirming its commitment to a peaceful transition of power, saying that it “intends that there should be no disruptions by the president or any person in power to overturn the will of the people of the United States.”
If Trump flat-out refuses to concede and leave office should he lose, circumstances would dictate what happens next.
For instance, if Biden is perceived to have won in a landslide, Trump “would have to persuade many, many people who are currently in government, most of whom are civil servants, they have to go along” with any effort to remain in power, according to Duke University political science professor Peter Feaver.
Also, the partisan make-up of the new Congress could be crucial in deciding and disputes over presidential legitimacy. If Democrats gain control of the Senate and keep their hold on the House, they could move to settle any disputes in Biden’s favor if he appears to be the clear winner.
However, if the presidential race is very close and control of Congress remains divided, there are no clear precedents. In a worst-case scenario, it may come down to who has the support of the U.S. military.
Joint Chiefs of Staff Chairman Gen. Mark Milley told Congress in August the military will play no role in resolving any dispute about the election.
Biden, however, said in June that he’s “absolutely convinced” the military would step in if Trump rejected a loss, saying, “I promise, I am absolutely convinced they will escort him from the White House with great dispatch.”
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