We can all hope that the presidential election goes off without major hitches and that a winner emerges through the normal process of counting ballots. But even if nothing nefarious happens, close races in key states may not allow us to know a winner on Election Day, or even the next day. The pandemic has led to changes in election administration that have led to an unprecedented number of absentee and mail-in ballots, which in some states don't get counted until polls close on regular in-person voting. Even if everything goes smoothly, recounts may be triggered, either automatic or at the request of the losing side, according to state law. And then, of course, the results may not be beyond what lawyers call "the margin of litigation." Here's a sketch of what we can expect to see.
I. Framework for Electing a President
The Constitution assigns each state Electoral College votes equivalent to the total number of their congressional representatives (House and Senate), plus three for the District of Columbia. Each state (plus Congress and the city council for D.C.) runs its own system for picking electors, as set out in Article II, Section 1 of the Constitution. Election Day itself, the Tuesday after the first Monday in November, is set by federal statute -- but that's just the federal deadline, with all states allowing some form of absentee voting by mail and most allowing in-person early voting. In all states but North Dakota, people must register to vote, though 21 states and D.C. allow Election Day registration.
Most states begin counting in-person votes as polls close and finish counting within a day. Absentee ballots are different; although tallies cannot be released until after polls close, many states begin processing absentee ballots upon receipt or at a set time before Election Day begins. During the presidential primaries, states like New York experienced incredibly long delays counting the unusually high number of mail-in ballots. Provisional ballots -- papers filled out by voters who are not on a polling place voter roll, cannot show ID where required, or are otherwise of questionable eligibility -- are counted last, after investigation into each ballot.
Each state's executive branch, typically through the secretary of state, is responsible for certifying the results of the presidential election. They must send certificates to the national archivist, with copies to Congress. Under federal law, states must certify their electoral count by December 8. Also by federal law, electors must meet "on the first Monday after the second Wednesday in December next following their appointment.” This year, that means December 14. If electors are not selected through the election, state legislatures may do so in another manner, according to state law in place on Election Day. This statutory deadline contributed to the Supreme Court's decision to stop the recount in Florida in 2000.
Whether selected by voters or legislature, the electors must meet to formally pick a president and vice president. They do not come to Washington, however, but cast their votes in their own states. Thirty-three states and D.C. have laws that either punish electors who break their pledge to vote for a certain candidate) or refuse to count those votes. Just this past term, the Supreme Court unanimously upheld such state laws against "faithless electors."
Congress will then meet to count the electoral vote on January 6, a date again specified by federal law. State delegations may contest the count, but both a senator and a representative from the contesting state must protest in writing, at which point each body will debate the issue for two hours before reaching a conclusion. (This process could be complicated by uncertainty in congressional election results.)
If the electors fail to reach a majority, the Twelfth Amendment specifies that the president is chosen by the House (voting by state delegation) and the vice president by the Senate (with each senator casting one vote). The House has until Inauguration Day -- set by the Twentieth Amendment as January 20 -- to decide. If the House cannot reach a decision or is tied, then the vice president (if one is selected by the Electoral College or the Senate) acts as president until a new president is qualified. Only once since the ratification of the Twelfth Amendment has this process been triggered, in 1824.
II. Potential Problems with Certifications of State Election Results
Many pandemic-related legal and administrative issues, as well as the "normal" litigation over allegations of voter fraud and suppression, have the potential to significantly delay results. The massive influx of mail-in ballots increases the manhours needed to count; the mere process of removing votes from envelopes is a hurdle and, unlike machine votes, each paper ballot needs to be individually examined for conformity with election regulations. Along with these natural delays, legal delays abound. The following issues are either already in the courts or will be after Election Day. You may have already seen various Supreme Court rulings, which have generally left the status quo in place, deferring to state legislatures and state court (but not lower federal court) interpretations of state law. Here are some issues that courts may be asked to resolve ahead of the December 8 certification deadline.
A. Provisional Ballots
Provisional ballots (also known as challenge or affidavit ballots) are a failsafe mechanism for in-person voting for those whose voter registration or eligibility is in question. These ballots are segregated from the regular ballots until investigated by the local board of elections. A large number of provisional ballots can greatly increase the cost and time of an election due to the manhours needed to check voter viability. In this pandemic year, the issue will likely be exacerbated by fewer polling places, leading to an increase in voters not being on the rolls. Moreover, the confusion of the election may increase the percent of voters with valid provisional ballots. Potential legal issues could include challenges to the counting procedure because (a) different counters may have different standards, or (b) certain precincts may make greater efforts to count provisional ballots.
B. Vote by Mail Requirements
Some states require a witness or notary to certify a mail-in ballot; many states still require a voter to provide an excuse to vote by mail. Witness requirements will be relevant to post-election voter fraud allegations. The excuse requirements were mostly lifted, however, with most (but not all) states either already having no-excuse absentee voting or allowing fear of the pandemic as an excuse.
C. Late-Arriving Mail Ballots
There has been no shortage of controversy and publicity over the funding and administration of USPS, concerning whether the service has the capability to process the deluge in mail-in ballots. Delays in delivery could functionally disenfranchise voters if late arrival precludes their vote from being counted. Suits were filed in multiple states to extend receipt deadlines. The Supreme Court, in emergency decisions without benefit of full briefing and argument (and without ruling on the merits of the claim), allowed extended vote-counting in Pennsylvania and North Carolina, but rejected it in Wisconsin. The key consideration here is voter reliance -- the justices are wary of changing rules close to an election -- as well as deference to state officials' pandemic-related judgments. Pennsylvania and Minnesota, among other states, are segregating late-arriving ballots, lest the Supreme Court later rules them ineligible, to prevent the state legislature from thereby discounting the election results and appointing electors through an alternative method.
D. Fixing Defective Ballots
In the New York primary, candidates and voters successfully sued to require the state board of elections to accept all mail-in ballots received by a certain date, regardless of whether they were properly postmarked. Similar challenges in the general election could require states to begin counting after their vote had been initially certified. Suits over other errors voters make on their ballots have received less favorable treatment. Plaintiffs in Ohio, for example, failed to enjoin the state board of elections from rejecting absentee ballots with signatures different than those on the record without contacting the voter and giving him a chance to fix the mistake.
E. Ballot drop-off sites
Parties have also brought suits challenging the locations of absentee ballot drop-off boxes. Similar to polling locations, drop box are meant to ensure that certain communities are not underserved. They are watched digitally to prevent tampering, but concerns over voter fraud remain. North Carolina settled with parties requesting ballot drop-boxes at early voting locations and county board offices. In Pennsylvania, the U.S. Supreme Court left in place a state supreme court decision allowing drop boxes at locations other than the offices of county boards of election. The Texas Supreme Court, meanwhile, upheld the governor's order limiting each county to one drop box location, which has been controversial in the most heavily populous (and most Democratic) counties, such as Harris County (Houston).
F. Ballot Harvesting
“Ballot harvesting” is a practice where volunteers go door-to-door (or in a nursing home, say) collecting ballots from people and offering to turn them in. Litigation about the validity of this practice has been ongoing even before the pandemic; the Supreme Court will already be hearing a challenge to Arizona's ban later this term. Supporters of laws banning the practice argue that ballot harvesting incentivizes collecting ballots only from the harvester’s political allies and allows unaccountable, non-state actors the opportunity to destroy ballots from those they suspect oppose their candidate of choice.
III. What If No President or Vice President Is Elected by Inauguration Day?
At noon on January 20, the term to which Donald Trump and Mike Pence were elected in 2016 will expire. Congress has until Inauguration Day to certify the new Electoral College result or pick a president and vice president for the next term. If it's unable to do that -- for example, if neither party has a majority of state House delegations and the Senate is 50-50 -- federal law suggests that the question goes to the statutory line of succession: speaker of the House, president pro tempore of the Senate, and then to the outgoing president’s cabinet officials. But each of these developments raise their own political and legal complications.
1. Vice President Pence Elects Himself?
The Constitution specifies that senators are supposed to vote for vice president, but if multiple seats are still in dispute and no candidate gains 51 votes -- the Twelfth Amendment specifies a majority "of the whole" -- then there's no vice president and we move down the line of succession. But what if it's tied 50-50? Although the Constitution doesn't specify a tiebreaker, but outgoing Vice President Pence may try to act as one, as he does for purposes of legislation and nominations as the constitutionally specified president of the Senate. There's no precedent for such an action, of course, and the Supreme Court may treat it as a "non-justiciable" political question -- or it may decide to decide the point one way or another to avoid a potentially worse constitutional crisis.
2. Speaker of the House
Because the entire House of Representatives is up for reelection and potential delays in the results may create uncertainty in those races too, the House speakership may be a free-for-all as new representatives trickle in. The speaker must be elected by a majority of those voting, assuming a quorum of 218 (half plus one). At this point it's looking like even without any tossups that may be undecided come January, the Democrats (and therefore Nancy Pelosi) are pretty safe. But there's still a question of whether it's constitutional for the House speaker to be in the line of succession, given that this is not a federal "office" as required by Article II, Section 1, Clause 6 (which was largely superseded by the Twenty-Fifth Amendment, but perhaps not on this point).
3. President pro tempore of the Senate
The president "pro tem" of the Senate is, by custom but not law, the longest-serving member of the majority party; a new majority votes this largely honorary position in by simple resolution. The current president pro tem is Chuck Grassley of Iowa. For the Democrats, it would be Patrick Leahy of Vermont, who previously served as president pro tem in 2012-15. It's very possible that the Senate ends up 50-50, in which case the president pro tem ends up again being Grassley (because Pence would still be VP on January 3, when the new Congress opens). The president pro tem of course faces the same question of constitutional eligibility as the House speaker.
4. Cabinet secretaries
If neither body of Congress has been organized by noon on Inauguration Day, the Secretary of State (currently Mike Pompeo) becomes acting president -- at least, presumably, until the House elects a speaker. The list continues through all cabinet secretaries, though current Secretary of Transportation Elaine Chao is ineligible because not a natural-born citizen and there's some question whether an acting secretary, like Chad Wolf of Homeland Security, is properly in the line of succession (putting aside the debate over the legality of his particular appointment).
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Between the “postmarked-by” deadlines that allow counting to continue long after Election Day, late starts to the counting, and the legal disputes which are both ongoing or likely to emerge after provisional results are announced, it's unlikely that the election will be definitive Tuesday night unless there's a blowout. Battleground states like Pennsylvania and Michigan can be expected to have delays of over two weeks; other key states that may also not be finalized for several days. The country should prepare itself for a suspenseful month (or more) before our next president is selected, but we should try to remain calm as legal and constitutional processes work themselves out.