With less than five weeks to the general election in the United States, the partisan temperature is rising as politicians and their lawyers plot their electoral strategies. Remember, in the US the contest for the presidency is really, in essence, fifty-one different elections (including DC), governed by approximately 10,500 electoral authorities, each enforcing a different set of rules. Indeed, the fight over those rules has already begun, as lawyers for both parties have filed approximately 200 lawsuits in at least 28 states, according to Jeffrey Toobin’s reporting for The New Yorker.
To complicate matters, there is a pandemic still going on and many states have changed the rules to make voting by mail easier, so as to avoid long lines on Election Day. These changes have prompted a backlash from President Trump, who has argued, without presenting any evidence, that the increase in mail-in voting will lead to widespread fraud. This is hogwash.
The underlying reason for Trump’s attempt to discredit the mail-in vote process has to do with a phenomenon political scientists have called the “blue shift.” During most of the 20th century, 98 or 99% of the votes were cast on Election Day. Over the last 20 years, however, mail-in voting has increased significantly, especially among Democratic-leaning voters. This means the “final” count on election night may not reflect the real winner of the election. For instance, take the 2018 election for an open Senate seat in Arizona. On Election Night, the Republican candidate, Martha McSally, had a one percentage point lead over the Democrat, Kirsten Synema. Yet at the end of Election Night, there were some six hundred thousand ballots still to be counted. When they were duly canvassed, Synema won comfortably by more than 50,000 votes.
This year both Republicans and Democrats expect this “blue shift” to occur in many states. Hence the legal skirmishes already going on, with the Republicans, in general, arguing that whoever is ahead on Election Night should be declared the winner in the state, while the Democrats, in general, argue the election should be kept open a “reasonable” number of days (no knows how many days would be “reasonable”) to allow for mail-in ballots to come in and be counted.
Now bear with me, as things are about to get complicated. Counting mail-in ballots takes longer than counting in-person ballots. The reason for this is that county and local officials have to verify the ballots comply with the applicable rules. And ballots can be challenged by representatives of either campaign for any number of reasons: a missing signature, a signature in the wrong place, using a nickname to sign the ballot (for example, Jimmy Smith instead of James Smith), writing the date in the signature line, failing to enclose the ballot in an unmarked envelope before putting it in another envelope addressed to the election board; or an illegible postmark, among many other reasons. So, the canvassing of these votes could be a long and slow process.
In almost any other country this would not be a problem. But the US the presidential election is not only fragmented, it is also an indirect process. When people mark a ballot for a presidential candidate, what they are doing in fact is voting for a slate of electors that meet later in the year to choose the president. This is the Electoral College process and it works according to its own timeline, summarized here by the Congressional Research Service (“CRS”).
This process is governed by several provisions of the US Constitution (notably, Article II, and the 12th and 20th Amendments), as well as the Electoral Count Act of 1887 (codified at 3 U.S.C. §§ 1-18). Article II, § 1 of the US Constitution states that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” Notice the first wrinkle here. The power to appoint electors is vested in the state legislatures. Over time, however, those legislatures have essentially delegated that power to the voters by enacting laws requiring that state electors be awarded to the candidate who obtains the most votes in that state.
Now we have the first plot twist in our story and our first encounter with the Electoral Count Act, which many scholars consider one of the most poorly drafted statutes in the history of Congress. In general, when the states have completed the vote count and ascertained the official results, the Act (3 U.S.C. §6) requires state governors to prepare, “as soon as practicable,” Certificates of Ascertainment of the vote. These certificates must “list the names of the electors chosen by the voters and the number of votes received in the popular election results, the names of all other candidates for elector, and the number of votes they received.” A copy of this Certificate of Ascertainment must be sent to the Archivist of the United States and six copies must be provided to the electoral college delegation in each state prior to their meeting date.
But what happens if the vote count is delayed due to all those mail-in ballots and the governor refuses to sign the Certificate of Ascertainment because the counting is still ongoing? Here we run into the first important deadline imposed by the Electoral Count Act. According to the CRS “the U.S. Code (3 U.S.C. §5) provides that in a contested election in any state, if the state, prior to election day, has enacted procedures to settle controversies or contests over electors and electoral votes, and if these procedures have been applied, and results have been determined six days before the electors’ meetings, these results are considered to be conclusive, and will apply in the counting of the electoral votes. This date, known as the “Safe Harbor” deadline, falls on December 8 in 2020.”
In theory, in a state where the count is not over by this date, state legislators may pass a law to “direct” a new manner of appointing the state’s electors, namely authorizing themselves (the legislators) to choose the electors, in order to fall under the “safe harbor” deadline. But how would this work in a state with a Republican-controlled legislature and a Democratic governor (such as Pennsylvania), who may refuse to sign the Certificate of Ascertainment or prepare and file a certificate with Democratic electors? No one really knows.
This leads us to the “Monday after the second Wednesday in December” (am telling you, I could not make this up even if I wanted), which is the date the Act sets for the meeting of the Electoral College. In 2020, this meeting shall take place on December 14th. On that date, the electors meet and vote by paper ballot, casting one ballot for President and one for Vice President. If everything goes well, the electors count the results and sign six certificates, known as the Certificates of the Vote. These Certificates are then paired with the six Certificates of Ascertainment and sent by registered mail to the President of the Senate (1 copy), the Secretary of State of the state (2 copies), the Archivist (2 copies); and the judge of the U.S. district court of the district in which the electors met (1 copy).
However, if everything does not go well, things get complicated fast. This has happened three times in the past. In the election of 1800, Thomas Jefferson and Aaron Burr, his candidate for Vice President, tied with 73 votes each in the Electoral College. The election devolved to the House of Representatives, where it took state delegations to the House some 36 attempts, until one candidate, Jefferson, finally obtained a majority and was sworn in as president. This episode resulted in the adoption of the 12th Amendment.
The second time the Electoral College machinery did not work was in 1824. The four candidates ran for president but no one obtained a majority of the electoral votes, though Andrew Jackson won a plurality of the popular vote. It fell upon the House of the Representatives, who chose John Quincy Adams as president, reportedly after he cut a deal with Henry Clay, then-Speaker of the House, to make him Secretary of State in the Adams administration.
Finally, we have the election of 1876, when the election results in four states (Florida, Louisiana, Oregon, and South Carolina) were under dispute and three of those four certified conflicting slates of electors to Washington. Congress set up a special commission consisting of five representatives, five senators, and five judges to determine which certificates were valid. At the end of the day, Rutherford B. Hayes was elected president, after promising to end Reconstruction in the South. An event that set back African-American rights by a century. This election prompted the enactment of the Electoral Count Act of 1887, which was the product of a political compromise. Perhaps that why it is so notoriously difficult to read.
All three scenarios: an electoral college tie; a failure to obtain a majority of the electoral college; and the filing of conflicting results from one or more states are still possible today. The important point is that if we get this far into the process without a clear winner, things get messy, very messy, real fast. The 20th Amendment states that on January 3rd a new Congress is sworn in. So it is this new Congress that counts the Electoral College votes, sitting in a joint session on January 6th (though this date can be changed by enacting a new law) with the Vice President, in this case Mr. Pence, who is in office until January 20th, according to terms of the same Amendment, as the presiding officer, pursuant to the 12th Amendment.
On January 6, 2021, at 1:00 pm, meeting in the House chamber, Vice President Pence opens the envelopes with the Certificates of Ascertainment and the Certificates of the Vote and presents them to four tellers, two from each chamber. The tellers then read and record the votes. When the process is finished the tellers “transmit” them to the Vice President. If one of the tickets has obtained 270 or more electoral votes the results are announced and the new President and Vice President sworn in on January 20th.
However, as the votes are being counted, members may object to the returns from any state as they are announced. The objection must be made in writing and signed by at least one member of each chamber. In that event, the joint session recesses, and the two houses debate the issue for two hours in their own chambers. They then reassemble and announce the results of their respective votes. According to the CRS, “an objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded”.
We must point out, though, that specialists in electoral law differ about this outcome. Some argue that in such an event the votes cast by the electors listed in the Certificate of Ascertainment signed by the governor of the state prevail. This presupposes, however, such a Certificate has been signed by the state governor. Other scholars argue that in this event all the electoral college votes of that state must be disallowed. But if that happens, it could be impossible for any candidate to obtain a “majority of the whole number of electors appointed”, as mandated by the 12th Amendment.
The US would then be in uncharted waters and a multiplicity of outcomes become possible. If it is determined that no candidate has been able to obtain 270 electoral votes or more, the election is again thrown to the House and the Senate. The House would vote for the President, with each state delegation having one vote. A simple majority would be required to be elected president. As of today, Republicans control 26 state delegations, Democrats 22, and 2 are split evenly, but that advantage may change after January 3, as this issue would be decided, remember, by the new House.
Meanwhile, the new Senate, but still presided by Pence, chooses the Vice President. In this case, the 12th Amendment states that each Senator gets one vote and a simple majority is required to elect the Vice President. But what happens if the new Senate is split 50/50? In normal cases it would be up to the Vice President to break the tie, but can he do it in the case of deciding his own re-election? What happens if the Republicans maintain their advantage in the number of House delegations but the Democrats edge out a 51-49 majority in the Senate? In that case, we could end up with President Trump and Vice President Harris. Under other scenarios, we end up with President Pelosi, pursuant to the terms of the 20th Amendment.
Bottom line, let us hope the will of the electorate is clear on Election Night, or at least by December 14th, otherwise there lie dragons ahead.