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Six Scenarios for Confusion in Counting the 2020 Ballots: Not Just Scary Campfire Stories Any More

Every four years, political obsessives like to scare themselves like kids around a campfire, sharing stories about weird presidential election outcomes — such as a divergence between the popular and the electoral vote (which is now old hat, having happened twice in recent memory), or a 269-269 electoral college tie, which would send the election to the House, with every state, from California to Wyoming, getting one vote for president.

But this year, in an era of hyperpartisanship, norm-breaking, and declining voter trust in institutions, new and even scarier scenarios are bubbling to the surface. 

Earlier this month, some 30 political scientists met virtually for a public webinar and discussion of outlandish, yet hardly implausible, scenarios of how the 2020 presidential election could devolve into chaos. It was convened by law professors Edward B. Foley and Steven F. Huefner of Ohio State University. (The full video can be accessed here.)

The scenarios fell into three time periods. 

  1. The period from Election Day to the meeting of the electors in the states. (Procedural nerds will know that the electors meet on the first Monday after the second Wednesday in December, or Dec. 14 this year.) 
  2. The period from the electors' meeting to the day that Congress counts their votes, which is fixed by statute on Jan. 6
  3. The period between the counting of the electoral votes to the inauguration on Jan. 20

Each of these three periods, the participants agreed, offers its own unique set of legal and constitutional landmines.

The virtual meeting was designed to forge an academic consensus over how some of these scenarios should be handled under existing constitutional and statutory precedent before partisan lenses color any such decision.

"It's important to have this discussion now, rather than in December," Richard L. Hasen, a professor of law and political science at the University of California-Irvine, told the group.

That said, the participants displayed enough disagreements of interpretation during the webinar that reaching even an academic consensus looks difficult, to say nothing of getting all politicians and both major parties on board in the less-than-six-month window before November's election.

Still, the topics raised in the session are likely to produce ulcers for many close watchers of politics. What follows is a sampling of some of the scenarios that participants chewed over.

"The election administrator's prayer is that the election turns out not to be close," Foley told the group. "But that's like praying that the pandemic doesn't hit our shores."

We won't pretend to solve the legal dilemmas raised here, but we'll at least offer a recap of these scenarios. You can't say you haven't been warned.

Scenario 1: Procedural changes late in the process are challenged in court, leaving the winner of a state hanging in the balance.

The participants discussed an example involving Philadelphia voters who, due to coronavirus-related delays, received their absentee ballots late. In this scenario, a state court has allowed these voters to vote by using an existing federal absentee ballot that is typically used by overseas servicemembers. The court allowed them to submit these ballots by the deadline for overseas voters, one week after the election.

In the scenario, the GOP has challenged this state court decision in federal court, citing a lack of due process and arguing that it unfairly changed the rules of an election in the middle. The Democratic Party countered that the remedy imposed by the state court was justified because it was based on equal protection. In other words, both parties pointed to credible constitutional arguments for their case. 

Where would the judiciary come down on this question? It's unclear, but the impact could be substantial. If the election in Pennsylvania was close enough, the federal court's decision could determine the winner of the state. And if the national race was close enough, the decision could determine the winner of the presidency. In other words, Pennsylvania would become the new Florida.

Scenario 2: A major natural disaster hits on or near Election Day.

Let's say it's a hurricane, it's devastating, and it hits Florida. Maybe the damage hits regions that are exclusively strongholds of the GOP and the decline in turnout makes the difference in a state where just one or two percentage points have decided major statewide elections in recent cycles. 

Could the Republican-controlled legislature extend voting in those areas? More dramatically, could the legislature simply vote to bless the Republican slate of electors, even if the Democratic candidate won the state under the voting as it was actually conducted?

Most of the experts agreed that if a disaster made the overall turnout low enough — 5% to 10% of the typical turnout level, say — the election results wouldn't have much popular credibility, and that would make extraordinary solutions justifiable. If the difference is more on the margins, however, overturning the result would be harder. But if the stakes were high enough, all bets could be off. In Florida, the Republicans control the governorship and both chambers of the legislature.

Scenario 3: On election night, the Republicans have the lead in a key battleground state, but that lead is erased due to late-counted ballots favoring the Democrats.

The participants looked at a scenario where this happened in Michigan. This state already has a modestly high level of mail balloting and expects to have significantly more this fall due to the pandemic. (Notice how these scenarios all revolve around the critical battleground states?)

President Donald Trump could tweet that the initial count was sufficient and that mail ballots — an election method he's already inveighed against repeatedly — are illegitimate and thus shouldn't be counted. 

In Michigan, Democrats occupy the offices of governor, secretary of state, and attorney general, but the GOP controls both legislative chambers. Michigan Republicans could back Trump's position and decide to submit their own slate of (Republican) electors, bucking the slate that is officially certified by the Democratic officeholders.

At this point, the Democrats could go to court, arguing (opposite to what they argued in the Philadelphia scenario above) that the rules shouldn't be changed in the middle of an election without violating due process. 

However, a court might say it has no role, since counting electoral votes is a responsibility delegated explicitly to Congress in the Constitution. "There's a serious question whether a court would do anything about it," Paul M. Smith, vice president for litigation and strategy at the Campaign Legal Center, told the group.

This would lead to Scenario 4.

Scenario 4: Congress is presented with two sets of electoral votes, each backed by a different party. 

This could be a particularly dicey situation today since there's a risk of stalemate unless both chambers of Congress agree on the counting of electoral votes. This could become less of a problem if the Democrats take over the Senate in the 2020 election (it's the new Congress that is charged with counting the electoral votes), but at the moment, the Senate is held by Republicans and the House is held by the Democrats. What if the two chambers disagreed on which set of electors is the valid one?

There's a law that addresses this, though it's open to some interpretation.

This obscure law, the Electoral Count Act, was passed in 1887 and was designed to prevent the mess that followed the disputed 1876 presidential election between Rutherford Hayes and Samuel Tilden.

The text of the law is fairly impenetrable, but here's a key portion: "If the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted."

This provision would seem to offer a "tie-breaker," but who would that "executive" be? The executive who certifies election results varies by state, with some states using the governor and other states using the secretary of state. What if the "executive," due to partisan loyalties decided to go against voters' will? Would Congress stop this "rogue" executive by rejecting that slate?

Then there's a separate question: Could Congress decide to ignore the Electoral Count Act entirely? After all, the Constitution gives full authority to Congress to count electoral votes. Could that lead to a split decision between the two chambers, with the Supreme Court forced to referee? Think of this as Bush v. Gore squared. What if the Supreme Court didn't want to get involved, on separation of powers grounds? Who would decide then?

"It strikes me that rules can help in settling political disputes, but they also presuppose shared normative understandings," Lawrence R. Douglas, a law professor at Amherst College, told the participants. "The rules may not be adequate for dealing with the problem."

Scenario 5: Congress simply agrees to ignore a state that has competing electoral slates by not approving either slate. What happens to the minimum number of electoral votes required to win the presidency?

There is some precedent for this situation, but it isn't especially helpful.

After the election of 1872, electoral votes from Arkansas and Louisiana were not properly certified, and three of the votes from Georgia were given to a candidate who had died. Congress decided to reject these electoral votes for president. However, it's not clear what threshold for victory they used, because Ulysses S. Grant's showing was strong enough for the question to be moot.

The nonpartisan Congressional Research Service has written that on the question of the threshold, "the practice in Congress has not been consistent."

Despite this lack of clarity, it could become an important issue. If a large state's electoral votes are knocked out by a disagreement over disputed slates, yet the normal winning threshold of 270 was still enforced, it would increase the likelihood that the election would be thrown into the House, where confusion could reign.

Scenario 6: There's no clarity on who won the presidency by Jan. 20, inauguration day.

What if both candidates claim victory?

Experts say that given heightened polarization today, we can't assume a repeat of the 2000 election, in which Al Gore quietly accepted the 5-4 ruling of the Supreme Court despite reservations among many of his fellow Democrats about the legitimacy of that ruling.

There is a fallback if no one undisputed is set to be sworn in on Jan. 20. According to the 1947 law establishing the line of succession to the president, if the president and vice president are unable to be inaugurated, an "acting president" takes over until the situation is resolved. First in line would be the speaker of the House, and second would be the president pro tempore of the Senate, as long as the official resigned their seat in Congress. Beyond those two positions is a list of cabinet positions.

But Foley raised a potential obstacle to this relatively smooth process. What if, rather than agreeing to disagree, the two chambers each insisted that a different president has been elected and refuse to back down? In other words, at noon on Jan. 20, if both Trump and Biden are claiming to be president-elect and are getting the backing of their respective parties, "the question in my mind is who does the military obey as commander-in-chief?" Foley said in an interview. "This is an issue that I think needs more discussion among relevant experts, including experts in military law, before November."

Uncertainty about the winner of the presidential election could encourage either side to push the envelope during the transition period. Liza Goitein of NYU's Brennan Center for Justice told the group that Trump "could create a reality on the ground that would be hard to change at noon on the 20th," she said.

Goitein added that while she didn't think such uncertainty was likely, "for the first time in modern history, it's possible."