There has been a lot of banter from both presidential candidates about a potentially rigged or stolen election, and many on both sides of the aisle predict a lengthy legal battle over the presidency.
President Trump has warned that the outcome could be in dispute for “months and months” or “for years” due to mail in ballot fraud.
So instead of dwelling in speculation..... let’s run through the realities of an inconclusive presidential election.
First of all, it’s Congress, not the courts, that certify the results of a presidential election. Each state chooses its electors and those electors’ votes are transmitted by the state elections boss, usually a secretary of state, to the Senate.
On January 6, 2021 a joint session of the next Congress will meet to
ratify the electoral findings and declare the candidate that has won a majority of the vote..... getting 270 votes or more, the president of the United States.
One scenario is that not all the states would have their results by then or, what Trump and Biden have both suggested, is that the results may be rigged or disputed. Now that’s where things could get very interesting.
The courts have their own place in this, but that happens long before Congress gets to act. State elections officials have to certify their electors before the Monday after the second
Wednesday in December, which this year .... is Dec. 14. All of the legal positioning that takes place will have to happen between November 3rd and then.
We all recall the drama around the 2000 election that what was in legal dispute over the power of Florida’s secretary of state to certify the results despite demands from Al Gore’s campaign that recounts continue. The court deferred to state authorities and Florida certified its electors.
Taking into account how long counting has taken in some state primaries this year it’s not unreasonable to think that we could see legal battles until the last minute, but one way or the other, they’re obliged to convene their electors and transmit the results by certified mail by Dec. 14.
So what if some states don’t finish in time or what if secretaries of state certify electors with claims widely in dispute? Then we turn to the Constitution.
If the disputed or incomplete results will not prevent a candidate from reaching 270 votes then it’s no big deal. Congress would ignore what’s missing and still pick a president.
But what if the number of missing or disputed electors is large enough or the election close enough that the absence prevents either candidate from getting to 270? Then the House gets to choose. This would also be the case in a 269-269 tie, the House would select one of the candidates.
Here we have some precedent. In 1877, the results from three states were in dispute in a race close enough to call the final result, in this case, Congress created a bipartisan panel to review the results. The House certified the panel’s findings and awarded the presidency to Rutherford Hayes.
But regardless of how Congress arrives to its conclusion, on Jan. 6 the members will either certify the results or the House will get to work making its choice. In this case, the House acts differently than usual. The delegations from each of the 50 states get only one vote. California and Deleware would be equals.
Currently, Congress is pretty narrowly divided with 25 Republican, majority delegations, 24 Democrat, majority delegations and one tie, Pennsylvania. We don’t know what the next Congress will look like exactly, but we can assume it won’t be wildly different.
There are currently four states with caucus control decided by one seat: Arizona, Colorado, Florida and Michigan. One imagines there would be a great deal of deal making in such places. And it would be heated, indeed.
But whatever happens, the House will pick a president before noon on Jan. 20 when the current president’s term expires.
Our Founders, who created our Constitution contemplated the possibility of contested elections and on three separate occasions, it has been our Constitution that has been applied, leaving
Congress to resolve such disputes. If we end up screwing up this election beyond repair or if the participants try to wreck the republic in order to keep or obtain power, it won’t be the end of us.
Instead, it could be a historical lesson in civics and politics for us all.