Think about this situation: It’s been weeks since election day, and in a single state, it’s not clear which presidential candidate gained.
In an preliminary depend, the Democrat gained by roughly 100 votes. Then an audit discovered a counting error that put the Republican forward. Officers launch a recount, but it surely’s not completed by the December deadline for the electoral school to forged votes. So the state’s Democratic and Republican electors every declare victory and forged competing units of electoral votes for his or her candidates.
Outlandish? Probably not. This occurred in Hawaii in 1960, when John F. Kennedy confronted then-Vice President Richard Nixon in a high-turnout election marked nationally by voting irregularities and allegations of fraud.
This yr, as tens of millions of People mail their ballots or stand in line properly earlier than election day, Nov. 3, to verify their votes get counted, few could concentrate on the authorized equipment that exists to pick out the subsequent president if issues go incorrect on the poll field.
It’s a posh system of electoral fail-safes that begins and ends with the calendar. It’s additionally a system the place voters don’t essentially get the ultimate phrase, not less than in a roundabout way.
For the 2020 election, the states have till Dec. 8 — six days earlier than the electoral school should meet — to depend votes and settle all election disputes. If states can’t determine issues out by that “protected harbor” day, the newly elected Congress beneficial properties the power to find out the state’s winner when lawmakers meet to depend electoral votes on Jan. 6.
These guardrails had been erected after the disputed presidential election of 1876, by which a number of states within the Reconstruction South forged competing units of electoral votes. To type out the mess, Congress shaped a bipartisan fee of representatives, senators and Supreme Court docket justices, who awarded the votes to popular-vote loser Rutherford B. Hayes. Hayes gained the electoral vote 185 to 184.
Hoping to keep away from a repeat, Congress handed the Electoral Rely Act of 1887, which gave states the protected harbor deadline by which they may resolve their very own disputes with out Congress getting concerned. After that deadline, if state officers submit a number of units of conflicting electoral votes, the U.S. Home and Senate should agree on which set to simply accept. (If the chambers don’t agree, the votes licensed by the state’s governor prevail.)
That’s what occurred with Hawaii in 1960, with little fanfare. Congress selected to simply accept and depend a 3rd slate of electoral votes, for Kennedy, submitted by the state’s governor in January. By then, a recount had proven Kennedy gained the state’s well-liked vote. Kennedy, who already had a transparent majority of electoral votes from elsewhere, turned president.
In terms of stopping post-election chaos, “the most effective safety is the timetable,” mentioned Jeffrey Davis, a political science professor on the College of Maryland, Baltimore County. “The president’s time period ends on Jan. 20, no matter what he says and what occurs with the election. He can not get a second time period with out profitable the election or with out Congress saying so.”
President Trump has, at varied occasions, claimed baselessly that mail-in ballots are fraudulent, opposed funding for the Postal Service in an effort to hamper election mail, refused to decide to a peaceable switch of energy, advised delaying the election, instructed some voters to potentially vote twice, referred to as to “lock up the Bidens,” and advised the Supreme Court docket seat he simply crammed would possibly resolve the winner.
“Now, we’re relying on the federal courtroom system to make it in order that we will even have a night the place we all know who wins. Not the place the votes are going to be counted per week later or two weeks later,” Trump informed a crowd in Fayetteville, N.C., in September.
Many critics are nervous about how Trump would possibly act on election night time and instantly afterward; polls present him properly behind Democratic nominee Joe Biden.
“It’s very seemingly that the president can be making claims in regards to the validity or invalidity of the vote counting course of because it’s taking place,” mentioned Adav Noti, an elections professional on the Marketing campaign Authorized Heart, a nonpartisan voting advocacy nonprofit. “However the president has no management or authority over that course of in any respect. Actually zero. And so so long as state officers and the courts all abide by their authorized obligations, whatever the rhetoric, the election can be resolved peacefully and in a well timed method.”
Simply because there’s a course of for legally checking out electoral issues doesn’t imply that course of will go easily or uncontroversially. If there’s recount drama, loads of it’s more likely to occur earlier than the Dec. 8 protected harbor deadline, earlier than which the states stay in full management of methods to award their electors, who’re usually chosen by the candidates’ events. (Electors are alleged to forged their votes primarily based on how their states vote; in all however two states, the candidate who wins essentially the most votes within the state wins all of the electoral votes.)
Think about Florida in 2000, when the race between the Republican, George W. Bush, and the Democrat, Al Gore, was unbelievably shut, resulting in an notorious recount as Florida’s Republican secretary of state initially licensed Bush because the winner.
The race ended after the U.S. Supreme Court docket handed down a ruling, Bush vs. Gore, on protected harbor day, that ended the recount. A part of the courtroom’s logic was that the recount was not sticking to the procedures that existed earlier than election day and jeopardized the state’s means to choose its personal winner earlier than Congress took over.
“The courtroom principally argued that if the recount couldn’t be completed by that [safe harbor] date, they’d danger disenfranchising Florida’s voters,” Davis mentioned.
The courtroom’s liberal minority disagreed vehemently.
“Though we could by no means know with full certainty the id of the winner of this yr’s Presidential election, the id of the loser is completely clear,” Justice John Paul Stevens wrote in a dissent. “It’s the Nation’s confidence within the decide as an neutral guardian of the rule of regulation.”
Congress by no means obtained concerned. It was obligated to simply accept the outcomes offered by Florida in favor of Bush as a result of the state met the protected harbor deadline.
In North Carolina, a key 2020 presidential battleground, a state regulation enacted in 2001 truly spells out how the state would keep away from one other Bush vs. Gore situation and make sure that Congress doesn’t meddle with its outcomes.
If there’s no licensed winner by protected harbor day, the state’s presently Republican-controlled Legislature picks the electors “in accord with their greatest judgment of the need of the voters.” The statute provides that “the judgment itself of what was the need of the voters isn’t topic to judicial evaluate.”
In different phrases: We’ll be choosing the electors, thanks.
“So far as we all know, there isn’t any different related regulation within the nation,” Noti mentioned, noting that “it’s by no means been utilized, by no means been examined.”
A latest Atlantic article quoted an unnamed Trump-campaign authorized advisor as saying the marketing campaign was already game-planning eventualities the place GOP-held legislatures would possibly transfer to instantly appoint the electors in case of murky voting outcomes: “The state legislatures will say, ‘All proper, we’ve been given this constitutional energy. We don’t assume the outcomes of our personal state are correct, so right here’s our slate of electors that we expect correctly replicate the outcomes of our state.’”
The Trump marketing campaign declined to touch upon the report.
Biden marketing campaign spokesman Michael Gwin, requested in regards to the situation raised within the Atlantic article, declined to deal with it head-on.
“The Biden marketing campaign has assembled the most important voter safety program in historical past to make sure the election runs easily and to fight any try by Donald Trump to create concern and confusion with our voting system, or intrude within the democratic course of,” Gwin mentioned in an announcement. “We’re assured that we’ll have free and truthful elections this November, and that voters will decisively reject Donald Trump’s erratic, divisive, and failed management on the poll field.”
However not less than how the regulation is written, solely time will actually inform.
