Voting in the U.S. presidential election is over, but the counting continues, with President Trump’s campaign filing judicial lawsuits in several of the closely contested states, Pennsylvania, Michigan, Georgia, and Nevada, seeking to suspend the count or provide a more meaningful opportunity to observe the election and lay the groundwork to challenge the results. Experts note that the lawsuits could go all the way to the Supreme Court.
In a normal election year, if not contested, states count their popular votes based on early voting and Election Day voting, and after the results are confirmed, the electoral college, elected by the state’s voters, casts their ballots. There are a total of 538 electoral votes across the country, divided roughly by the population of each state. Most states will cast all of their electoral votes for the candidate who receives a majority of the popular vote in that state, with the exception of Maine and Nebraska, which distribute their electoral votes in proportion to the candidate’s share of the popular vote in that state. Ultimately, the candidate who receives more than 270 electoral votes nationwide will win.
Counts reported by states on election night or hours after the election are always unofficial because official results can take days or even weeks to be tallied, verified and certified. This year, the mass mailing of ballots meant that counting and opening the ballots could take longer than usual.
There are three possible scenarios that can occur after the results of a state’s vote count appear. Under normal circumstances, if a candidate receives a large enough margin of votes, the results will be confirmed.
However, if the unofficial margin of the vote count is close, some states will automatically or be required to conduct a recount. In states such as Iowa and Nevada, recounts are conducted whenever a candidate requests one, even if the vote margin is wide enough.
A dispute over the counting process or results could set off a wave of lawsuits in state and federal courts, which could eventually lead to a lawsuit in the Supreme Court. An army of lawyers from the Trump and Biden campaigns are already preparing for the onslaught of lawsuits. Trump has already filed lawsuits in a number of key states over voting deadlines and the vote counting process.
In an interview with Voice of America, Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, said, ” If any lawsuits are filed challenging the counting of the votes, denying absentee ballots or extending the time for absentee ballots, I have no doubt that whoever loses the lawsuit will be prepared to take it to the Supreme Court. “
That means it could be weeks, or even a delay until 2021, before Trump or Biden are confirmed as the winner.
Von Spakovsky told Voice of America, “Probably the most famous precedent is the Bush-Gore election lawsuit in 2000. It wasn’t so much that the Supreme Court decided who was president, but what they said to Florida officials. In the recount, Florida officials went from county to county using different standards for valid votes, and the Supreme Court told them they couldn’t do that, that there had to be a consistent standard for the entire state. So what I could see happening is that in Pennsylvania or North Carolina, for example, if they’re reviewing absentee ballots and deciding whether or not they should be counted or whether or not they’re following state law, state officials have to use the same consistent standard. They can’t fail to follow state law requirements in one county and strictly follow the law in another. If they do, I think this could end up in the Supreme Court. There, I think the Bush v. Gore decision will be a precedent for the Supreme Court to decide such lawsuits. “
Normally, if a recount or dispute is resolved quickly, a state can appoint its electors and the governor will prepare a certificate detailing the popular and electoral votes.
This year, states have until 8 December to elect electors and resolve any disputes over electoral teams and electors, a date known as the “safe harbour deadline”.
But if disputes cannot be resolved by that date, in some states, members of the executive branch or other agencies have a say.
Under the Constitution, regardless of the status of a state’s popular vote, especially if the state does not decide by the safe harbor deadline, the state legislature has the power to invalidate the results of an election that is still in dispute and to choose its own electors.
In Texas, the governor is the only person authorized to resolve disputes over presidential elections. In North Carolina, an independent state board of elections gets the final say.
But some scholars say that if a battleground state’s governor and state legislature belong to two different parties, they could submit two different election results. Pennsylvania, Michigan, Wisconsin and North Carolina all have a Democrat as governor and Republican control of the state legislature.
In 1876, the three states appointed “dueling electors,” prompting Congress to pass the Electoral Counting Act of 1887. Under this act, each house of Congress would decide which list of “dueling electors” to accept.
But in a 2019 paper exploring the possibility of Electoral College disputes, Ohio State University law professor Ned Foley called the language of the Election Counting Act “almost incomprehensible.”
According to Foley’s analysis, if the two chambers disagree, Trump’s Vice President Pence, as Senate president, could try to abandon a state’s disputed electoral votes altogether. In that case, the law does not specify whether a candidate would still need 270 electoral votes to win or whether he or she could win with a majority of the remaining electoral votes.
This year, the electoral college will meet in each state to vote on Dec. 14. However, some electors may choose to vote for a candidate other than the one they pledged to support, or refuse to vote at all — these candidates are known as “faithless electors.”
The counting of electoral votes and the announcement of the presidential list will be made by the new Congress on January 6. Under the auspices of the vice president, Congress will count the electoral votes from each state in alphabetical order.
According to the 12th Amendment to the Constitution, in the event that neither candidate receives a majority of electoral votes or there is a tie, a “snap election” will be triggered. This means that the House of Representatives elects the next President, while the Senate elects the Vice President.
Each state’s House of Representatives gets only one vote, so the presidential candidate needs 26 votes to win.
Foley, an Ohio law professor, told the New York Times that there is a chance that Congress will not be able to come up with a result on Jan. 6. This happened in 1876, when a special election commission was forced to decide the election two days before the inauguration because of allegations of voter fraud.
Both parties could ask the Supreme Court to resolve any congressional impasse, but it is uncertain whether the Supreme Court would be willing to rule on how Congress should count electoral votes.
Any election disputes in Congress must be resolved by Jan. 20, the day the Constitution requires the current president’s term to end.
Under the Presidential Succession Act, if Congress has not announced a president or vice president by then, the Speaker of the House of Representatives will serve as acting president. Nancy Pelosi, a Democrat from California, is the current Speaker.
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