Despite incomplete results from several battlefield states that could determine the outcome of the US presidential race, President Donald Trump announced victory over Democratic challenger Joe Biden on Wednesday.
The early move confirmed concerns Democrats had been voicing for weeks that Trump would try to dispute the election results. This could spark any number of legal and political dramas in which the presidency could be determined by a combination of courts, state politicians, and Congress.
Here are the different ways the choice can be challenged:
Early voting data shows that Democrats vote in far greater numbers by mail than Republicans. In states like Pennsylvania and Wisconsin, where postal ballots aren’t counted until election day, initial results seem to favor Trump as they count postal ballots more slowly. The Democrats had raised concerns that Trump would declare victory, as on Wednesday, before these ballots could be fully evaluated.
A close election could lead to litigation over voting and census procedures in battlefield states. State-filed cases could eventually reach the US Supreme Court, as did Florida’s 2000 election when Republican George W. Bush beat Democrat Al Gore by just 537 votes in Florida after the Supreme Court did a recount had stopped.
Trump named Amy Coney Barrett a Supreme Court Justice a few days before the election and created a Conservative majority of 6-3 that could favor the President if the courts are weighing a controversial election.
“We want the law to be applied in an appropriate manner. So we’re going to the US Supreme Court. We want all voting to stop,” Trump said on Wednesday, even though electoral laws in the US state require all votes to be counted, and many states routinely take days to complete the counting of legal ballots.
The US President is not elected with a majority of the votes. Under the Constitution, the candidate who wins a majority of 538 voters, known as the electoral college, becomes the next president. In 2016, Trump lost the national referendum to Democrat Hillary Clinton, but received 304 votes for her 227.
The candidate who wins each state’s popular vote usually deserves that state’s voters. This year, voters will meet on December 14th to cast their votes. Both chambers of Congress will meet on January 6th to count the votes and name the winner.
Usually, the governors certify the results in their respective states and share the information with Congress.
However, some scholars have outlined a scenario in which the governor and lawmaker in a highly competitive state come up with two different election results. The battlefield states of Pennsylvania, Michigan, Wisconsin, and North Carolina have Democratic governors and Republican-controlled legislatures.
According to legal experts, in this scenario it is unclear whether Congress should accept the governor’s electoral list or not.
While most experts consider the scenario unlikely, there is a historical precedent. The Republican-controlled Florida legislature considered running its own voters in 2000 before the Supreme Court ended the Bush-Gore contest. In 1876, three states appointed “duel voters,” prompting Congress to pass the Electoral Count Act (ECA) in 1887.
Under the law, each Chamber of Congress would decide separately which list of “duel voters” to accept. As of now, Republicans hold the Senate while Democrats control the House of Representatives, but the election census will be done by the new Congress, which will be sworn in on January 3rd.
If the two chambers do not match, it is not entirely clear what would happen.
The law states that the voters approved by the “executive” of each state should have priority. Many scholars interpret this as the governor of a state, others reject this argument. The law has never been examined or interpreted by the courts.
Ned Foley, a law professor at Ohio State University, described the ECA’s wording as “practically impenetrable” in a 2019 paper examining the possibility of an electoral college quarrel.
Another unlikely possibility is that Trump’s Vice President Mike Pence, in his role as Senate President, could attempt to completely dismiss a state’s controversial electoral votes if, according to Foley’s analysis, the two houses cannot agree.
In this case, electoral collegiate law does not make it clear whether a candidate would need 270 votes, a majority of the total, or could prevail with a majority of the remaining votes – for example, 260 of the 518 votes left if Pennsylvania’s voters were voided.
“It’s fair to say that none of these laws have previously been stress tested,” Benjamin Ginsberg, an attorney who represented the Bush campaign during the 2000 dispute, told reporters on an October 20 conference call.
The parties could ask the Supreme Court to resolve a stalemate in Congress, but it is not certain that the court would be ready to decide how Congress should count the votes.
A determination that none of the candidates received a majority of the electoral votes would trigger a “conditional election” under the 12th Amendment to the Constitution. That is, the House of Representatives elects the next President while the Senate elects the Vice President.
Each state delegation in the House receives a single vote. As of now, Republicans control 26 of the 50 state delegations, while Democrats have 22. one is evenly split and another has seven Democrats, six Republicans, and one libertarian.
A conditional vote will also take place in the event of a tie between 269 and 269 after the election; There are several plausible avenues to a 2020 deadlock.
Any election controversy in Congress would take place before a strict deadline – January 20th, if the Constitution stipulates the end of the current president’s term.
Under the Presidential Succession Act, the Speaker of the House would serve as the incumbent president if Congress has not declared a presidential or vice-presidential winner by then. Nancy Pelosi, a California Democrat, is the current spokesperson.
(Except for the headline, this story was not edited by GossipMantri staff and published from a syndicated feed.)