Two legal experts on what might happen if there’s no clear winner on election day.
As we head into election day, there’s anxiety on both sides of the political aisle over the possibility of a contested election between President Donald Trump and Joe Biden.
Wake-Up Call talked to Susan Hennessey, the executive editor of Lawfare, and Joyce Vance, a former U.S. attorney and a professor at the University of Alabama School of Law, to clear up any questions about what might happen.
Wake-Up Call: First of all — how much of a possibility is there that this election will be contested?
Susan Hennessey: I think the most probable outcome is that the 2020 election will produce a clear winner without court intervention. That said, a contested election is well within the realm of possibility. The closer the outcome, the more likely the results will be contested; 2020 polling indicates a very close race in key states. Additional complexity also increases the probability of a disputed election. Currently election administrators are confronting the coronavirus pandemic, there is an unusual asymmetry between those voting by mail and those voting on election day. Plus, we are experiencing what looks to be historic turnout.
Joyce Vance: The popular wisdom is that the closer the election results are, the more likely it is that there will be a contested election. I think it’s very likely that barring unforeseen circumstances, any contest will center on mail-in ballots. President Trump, with no evidence to support his view, has steadily claimed that those ballots are full of fraud.
Speaking of mail-in ballots, swing states are being closely watched. We’ve seen the Supreme Court make rulings on absentee ballot deadlines in Wisconsin, North Carolina and Pennsylvania. How might individual state procedures make for a rocky election week?
Susan Hennessey: Each state sets its own rules regarding the period in which absentee ballots which are postmarked before but received after Election Day can be counted. This issue has increased significance right now because so many people are voting by mail in the pandemic and there are reported delays in mail service. Plus, in key swing states, polling shows that people who intend to vote by mail prefer former Vice President Biden, while those who plan to vote on Election Day prefer President Trump.
The Supreme Court kept Pennsylvania and North Carolina’s extensions on processing periods in place, because they were established by local and state officials. However, the court disqualified a federal court decision extending the period in Wisconsin.
Joyce Vance: That means that who sits in your state legislature has now taken on outsized importance when it comes to your right to vote. Additionally, in South Carolina and Alabama, the Supreme Court knocked down a federal court ruling abolishing the need for a verification signature requirement on mail-in ballots. Well, if you’re elderly or if you’re an at-risk person and you’re quarantining alone, the last thing you should have to do is come into contact with people so that they can certify your absentee ballot. These measures seem to be designed to do very little more than suppress voting. And certainly in a pandemic, there’s no reason to keep them in place, but the Supreme Court did.
What the president is now pushing, and what Justice Brett Kavanaugh shockingly said in his opinion in the recent Wisconsin case, is that the election should be decided on election night. They’re saying that people will wonder and will speculate about the fairness of the election if the vote goes on in the following day — especially if the early front runner isn’t the ultimate winner. I disagree. We should take our time getting it right. Every single one of those ballots should be counted.
We just saw the speedy confirmation of Justice Amy Coney Barrett. What could bring the election results to the Supreme Court and what might her recent confirmation mean?
Susan Hennessey: Importantly, in the Pennsylvania case, the decision is not completely settled and the court said it might revisit the issue after the election. That means that if the outcome of the election comes down to a narrow margin in Pennsylvania, and the result depends on how many absentee votes are counted, the Supreme Court might intervene in a manner which dictates the winner.
Notably, Justice Barrett is likely to join with the conservatives. That is significant because in the Pennsylvania and North Carolina cases, the court tied 4-4, with Roberts joining the liberals. Barrett may well alter the outcome. Because President Trump has openly said he wanted Barrett to be confirmed in order to decide the election, Democrats and legal scholars have called on her to recuse herself from participating in election-related cases to preserve the appearance of impartiality. She has refused to do so.
What lessons should we take from history and other contested elections — like the 2000 battle between George W. Bush and Al Gore?
Susan Hennessey: Most significantly for today, I think 2000 demonstrates the need for extraordinarily responsible political leadership during periods of election dispute.
Disputed elections inevitably (if not always) damage the perceived legitimacy of the eventual winner and, historically, prolonged uncertainty increases the risk of post-electoral violence. So it is really important that both sides make clear to the public that while they are engaging in litigation, they share pre-political commitments to the integrity of our democratic process. It is also important that the loser is willing to concede. Unfortunately, I think there are serious questions as to whether the current administration is capable of that kind of leadership.
What would cause the House of Representatives to decide the election?
Susan Hennessey: If neither candidate reaches 270 electoral votes, then the House of Representatives decides the winner. States vote as a single delegation. Each state has different numbers of representatives based on population, but the state only gets one vote. And if the delegation deadlocks, then its vote doesn’t count. We assume members will vote for the candidate of their own party, so the relevant question is which states have more Democrats or Republicans in their delegation.
Even though Democrats control the majority of seats in the House and are projected to hold the majority in the new Congress, currently Republicans hold the narrow majority of state delegations, so although it is a very remote possibility, both sides are carefully planning for every scenario.
President Trump and V.P. Mike Pence have repeatedly avoided commenting on whether they would peacefully concede the election. Say, we get to election day, and V.P. Joe Biden…wins fairly. What happens if they just refuse to leave office? What safeguards are in place?
Susan Hennessey: I don’t think people need to worry about this scenario. In the United States, elections are administered and results are reported and certified through a process controlled by the states, with actually very little involvement from the federal government. It is a pretty automatic process and it doesn’t depend on the agreement or participation of the outgoing president. If Biden is certified to be the winner in the electoral college, then as of Jan. 20 at noon, Donald Trump is simply no longer the president, he’s just a regular citizen hanging out in the Oval Office. That is actually true even in the event of some sort of insane hypothetical where no one has been declared a winner yet.
Joyce Vance: I mean, there’s a really easy answer to the question. Do you believe in a peaceful transfer of power? The answer is yes. That’s the only answer that any elected official in our country should ever give. So the fact that they can’t give that easy answer is a real red flag that something is amiss here. I believe that our institutions, which have been stretched very thin, have enough resilience left in them to withstand this one. I believe the justice department, the treasury department, and other agencies that would be called into play treat the person who is elected come January as president — and not as somebody who just chooses to stick around.
Reported and written by staff writer Amanda Svachula.