Sergio M. Marxuach

This year things are complicated by the COVID-19 pandemic and a record number of voters who have already cast their ballots to avoid the crowd on Election Day. This combination could result in a strange election night, as the initial returns show President Trump ahead in key battleground states, only to see his lead evaporate as mail-in ballots, which tend to break heavily in favor of Democrats, are canvassed — a phenomenon called the “blue shift” by political scientists. So unless Biden runs the table on election night, which is possible but unlikely, we could be in for a long season of vote counting.

Under this scenario, we can expect both parties to slug it out in court, as challenges and counterchallenges are filed in key states over missing signatures and illegible postmarks. All the while the President keeps tweeting that the “Democrats are trying to steal the election!!!”. We can expect this because he has done it . Look at what he tweeted on November 12, 2018, without any proof whatsoever:

“The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged,” he tweeted. “An honest vote count is no longer possible-ballots massively infected. Must go with Election Night!”

So, even with all that going on in the background, electoral boards and the courts have to resolve any disputes in a timely manner due to the Electoral College process. Remember, in the U.S. people don’t vote directly for the President and Vice President, but rather for a slate of “electors” who are “pledged” to the “ticket” (Trump/Pence or Biden/Harris) and will vote for them six weeks after election day.

Each state has a number of electors equal to the number of representatives it has in the House plus two more to account for its senators. D.C. gets the minimum of three electors. These 538 persons collectively constitute what is called the Electoral College. Currently, 48 states award all their electoral college votes to the winner of the state’s popular vote. Maine and Nebraska have a hybrid system, awarding some of their electoral college votes to the statewide winner, and some according to results within congressional districts. This year the electors are required to meet, in their respective states, on December 14^th. The results of their voting are then certified and the certificate is sent to Congress, which is in charge of tallying-up the electoral votes.

According to the Electoral Count Act of 1887 (“ECA”), Congress will give a state’s results a “safe harbor”, that is, they will be presumed valid if the state has resolved all election-related disputes six days before the electors physically gather. So, the effective or practical deadline for concluding any pending litigation is December 8^th, if the state wants to avail itself of this safe harbor.

Then, on January 3^rd, pursuant to the 20^th Amendment to the U.S. Constitution, the new Congress is sworn-in. It would be this new Congress, sitting in a joint session on January 6^th, presided by Vice President Pence, who is in office until January 20^th, that will tally up the electoral votes. The Vice President, with the assistance of four ”tellers”, two from each chamber, is charged with counting the votes. The ECA, however, provides for the challenge of a state’s electors, as long as the challenge is made in writing and signed by at least one representative and one senator.

Hopefully, things will not get that far and the winner will be known either by election night or shortly thereafter. But we cannot rule anything out. Not this year, with this president and this ridiculous 232-year-old U.S. electoral process that is still in effect.