Election 2020, a mix of pandemic, reckless musings by presidential campaigns, uncoordinated federal and state election laws, and ballot litigation, promises us a ring-side seat to watch sausage being made. Like Bush v. Gore, the U.S. Supreme Court will be invited to decide a political fight or a few political fights.
Unless one candidate wins by a large margin, 2021-2024 will be a continuous fight over legitimacy, no matter who wins. George W. Bush, Obama, and Trump were considered illegitimate by some portion of the nation. This time, half the nation may believe the next president illegitimate.
Forget Russian interference, there are no algorithms for gaming the outcome of the electoral college process. It was designed by compromise, not logic. The electoral college, like the play Shear Madness, allows for many endings. We need to let the solid judgment of the Founders compromise play out.
A candidate securing 270 electoral votes is the next president.
Disputed elections, however, can have surprise endings. Election disputes usually arise when one candidate has a small vote lead but the other candidate alleges that if certain votes are counted, he/she would win. With surveys estimating 80 million people voting by mail; each state has different deadlines for counting votes, it’s likely deadlines will be missed causing challenges to slates of electors.
The determining factor in 2020 is whether disputes can be resolved in 35 days after the election, i.e. before December 8, 2020. If disputes are resolved within that time period, the selection of electors is “conclusive” and must be accepted by the next Congress, starting January 3, 2021.
Electors from states with unresolved disputes will be resolved by Congress in accordance with federal statutes. In separate proceedings, each House must decide which set of electors to certify. If the House and Senate agree on a slate of electors, the slate is certified. If the House and Senate cannot agree, the electors certified by the Governor of the state are counted.
After certifying contested elector slates, Congress counts the electoral votes. If one of the candidates receives 270 electoral votes, that person shall be president. If no person has a majority of electoral votes, the House, voting by state, each state having one vote, votes to elect a president. The person receiving votes from a majority of states is president.
Which party benefits from this dispute process? Currently, Democrats control the House however, Republicans in Congress hold majorities in 31 state delegations and 26 governorships. In seven swing states (AZ, FL. IA, MI, MN, PA, WI), Democrat’s hold majorities in 4, Republican’s 2, and PA is tied. Republican governors in swing states hold a 4-3 advantage. Guessing the ending is Shear Madness!
There is no time frame for completing the process, thus the need for the Presidential Succession Act which establishes a line of succession to ensure the nation is never without a president.
Notwithstanding electoral disputes, President Trump’s term ends noon, January 20, 2021.
In electing a president, there is a role for electors, state legislatures, governors, and Congress. There are, however, according to Professor Tokaji, “…no federal laws allowing judicial contest proceedings over disputed federal elections.”
Notwithstanding the established constitutional and statutory process, the U.S. Supreme Court, in Bush v. Gore, usurped Congress’ power to elect the president, when it blocked the Florida Supreme Court’s order authorizing recounts. Florida’s initial vote count gave Bush 1,784 more votes than Gore. The margin of victory was so narrow, state law required an automatic recount. Gore sought a manual recount. The Secretary of Elections, a Republican, denied the recount request. The Florida Supreme Court extended the recount deadline. Bush appealed to the U.S. Supreme Court which vacated the order of the Florida Supreme Court; ruling Florida’s order was standardless, violating the Constitution’s equal protection clause.
Even if Florida missed the safe-harbor deadline, and submitted competing electoral slates to Congress, Bush would have been elected president. Both Houses of Congress were controlled by Republicans. Even if there was a disagreement between the House and Senate, federal law mandates the slate certified by the governor, be counted. Governor, Jeb Bush would have certified George W. Bush electors.
In 2000, the Supreme Court disrupted constitutional and statutory procedures, used by states and Congress, to elect presidents. In 2020 the court again could be asked to set aside the same procedures. Notwithstanding the court’s lofty language, one-half the voters will believe it is manipulating words to hide its true intent – accumulating power as the nation’s super-legislature.