Explainer: Why Election Day could be just the start of a long battle
over the U.S. presidency
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[July 24, 2020]
By Joseph Ax
(Reuters) - President Donald Trump's
refusal this week to say if he would accept the results of November's
election, and his repeated assertions that the vote will be "rigged"
because of mail-in ballots, have raised the specter of a disputed
election that could take weeks, or even months, to resolve.
Even absent allegations of fraud, the deluge of mail ballots due to the
coronavirus pandemic could take weeks to tally, making it less likely a
winner is declared on Election Day in the contest between Trump and
Democrat Joe Biden. The former vice president currently leads Trump in
opinion polls.
Here are some of the messy scenarios at play – and how they might
unfold:
MAIL-IN BALLOTS
Mail ballots will likely cause significant delays in tallying results.
In many states, they can arrive after Election Day, and officials must
open them by hand and verify signatures. Already this year, some primary
elections held mostly by mail because of the pandemic have remained
unsettled for weeks after Election Day.
Democrats worry such delays could allow claims of fraud to gain
traction.
A person briefed by the Biden campaign said the candidate's staff was
bracing for a "nightmare scenario" in which Trump declares victory based
on leading the in-person vote count in battleground states on Nov. 3.
But in the ensuing days, as mail-in ballots from densely populated urban
areas are counted, his advantage disappears in what experts call the
"blue shift" - and the president claims the contest is being stolen from
him.
THE COURTS
States have varying laws regarding mail-in and absentee ballots -
signature matching, postmark requirements, application deadlines - and
any could prompt litigation by either Democrats or Republicans over
which ballots should be eligible and which should not.
Presidential nominating contests held this year also exposed massive
challenges in delivering mail ballots on time, as election officials and
post offices were overwhelmed by the surge.
Voters who follow their state's rules but cannot get their ballots back
in time through no fault of their own could be effectively
disenfranchised. That could spark legal challenges in states where the
race is decided by slim margins.
Litigation filed in individual states could eventually reach the U.S.
Supreme Court, as it did in 2000, when Republican George W. Bush
prevailed over Democrat Al Gore by just 537 votes in Florida after the
conservative-leaning high court halted a recount.
The current court's conservative majority has generally been permissive
of voting restrictions. But that does not necessarily suggest the court
would lean toward Trump in a dispute over the election results, legal
scholars say.
ELECTORAL COLLEGE
Perhaps even more worrisome than litigation is the possibility of an
Electoral College dispute, some experts say.
The U.S. president is not actually elected by a majority of the popular
vote. Under the Constitution, 538 electors – known as the Electoral
College – determine the winner.
In practice, the candidate who wins each state's popular vote typically
collects that state's electors, which are apportioned based on
population. The governor of each state certifies the electors' vote,
which takes place this year on Dec. 14, and submits it to Congress for
its approval.
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A resident drops off a mail-in ballot at the Edmondson Westside High
School Polling site in Baltimore, Maryland, U.S., April 28, 2020.
REUTERS/Tom Brenner/File Photo
In a new book, "Will He Go?" Amherst College law professor Lawrence
Douglas outlined a scenario in which the results in three swing
states – Michigan, Wisconsin and Pennsylvania – are so close and
muddied that both sides claim victory.
The Republican-controlled legislatures in each state, egged on by
Trump, submit their own certificates awarding the electors' votes to
Trump, even as the states' Democratic governors send separate
certificates giving Biden the votes.
States have occasionally submitted competing certificates in U.S.
history, most notably in 1876, when the election remained unsettled
for months. The dispute was resolved only after officials from both
parties brokered a deal giving Republican Rutherford B. Hayes the
presidency in exchange for withdrawing U.S. troops left over from
the Civil War from Southern states, a move that helped usher in the
Jim Crow era of racial segregation.
The Supreme Court recently ruled that states could punish "faithless
electors" who cast votes for someone other than the winner of their
state. But more than a dozen states have no rules against faithless
electors.
Under the federal Electoral Count Act, Congress is responsible for
resolving Electoral College disputes, not the Supreme Court. But the
law is ambiguous, Douglas said, and if the Senate remains in the
hands of Republicans and Democrats keep control of the House of
Representatives, a split Congress may not easily agree on a
solution.
"If you ask whether our constitutional legal system is designed to
deal with an electoral crisis, the answer is, it really isn't,"
Douglas said in an interview.
MILITARY TO ESCORT HIM OUT?
Some experts said they were most concerned about the lasting damage
to democratic norms if Trump refuses to concede defeat, even if
Biden is declared the winner.
Peaceful succession is a hallmark of U.S. democracy. The Supreme
Court's ruling in Bush v. Gore did not end the election. Gore's
decision to accept it did.
Biden has suggested the military might need to "escort" Trump out of
the White House if he loses but refuses to leave. Whoever is sworn
in as president on Jan. 20 will command both the armed forces as
well as executive-branch security agencies, like the Secret Service.
A disputed election could also spark civil unrest in a country
already on edge thanks to the coronavirus, the recession and months
of demonstrations over racial injustice.
Mark Brewer, an elections lawyer who is helping train Democratic
legal volunteers in Michigan, said the best way to avoid an extended
legal battle would be for Biden to win by a wide margin.
"Democrats have to make sure this election is not close," he said.
(Reporting by Joseph Ax; Additional reporting by Michael Martina and
Phil Stewart; Editing by Soyoung Kim and Peter Cooney)
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