Before election day, some states start
early voting and
mail-in voting. That’s happening in this election, as well.
Americans go to polling places to cast their vote. This is also when mail-in ballots can be counted in most states. Once ballots are tallied, results start being released.
Organizations like the
Associated Press often project a winner on election night based on an analysis of votes already counted, the number of outstanding votes and the margin between the candidates.
This usually happens in the early hours of the next morning. A public concession makes it clear to the American people who has won. It can make everything after this feel like a formality.
Even if it’s clear who won local officials finish counting ballots in the days after the election and send their results to state officials. They approve the results and send them to federal officials.
States need to settle any election disputes and have a winner by this date, known as the “safe harbor deadline.” Otherwise, federal law says Congress can refuse to accept the electoral votes from that state.
When Americans vote they don’t directly vote for president and vice president. Rather, they vote for their state “electors” who represent their choice.
For example, if Joe Biden wins Michigan this year, the state’s 16 allotted electors would be Democrats. They represent the state at the
electoral college meeting on 14 December, where electors meet at their respective state capitols to elect the president and vice-president.
On 20 January, or 21 January if it’s on a Sunday, the constitution says the presidential term is over and the new president is inaugurated.
By early October,
6.6 million Americans had already voted, largely because of a surge in mail-in voting. Trump has said
mail-in voting is rigged against him, and his allies
have helped sow doubt in the election.
Democrats tend to be more likely to vote by mail, according to
research by election scholars Edward Foley and Charles Stewart. That means Democrats will gain more votes as mail ballots are counted, but it might also mean they are less represented in the in-person voting that happens on election day.
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Donald Trump has
encouraged supporters to “go into the polls and watch very carefully”, and Republicans have
actively recruited poll watchers to flag votes that could be challenged.
Armed paramilitary groups might show up at polling places to “protect” the election.
Republicans were long barred from poll watching because they used the tactic in 1981 to intimidate voters, but two years ago a judge
lifted that restriction.
In addition, Republicans may file an unusual number of lawsuits to try to halt counting or to challenge ballots.
Even if the media projects Joe Biden to be the winner, Trump may refuse to concede. He
said in August: “The only way we’re going to lose this election is if the election is rigged.”
The US Postal Service may be late in delivering mail ballots. Mail delays caused
tens of thousands of votes to arrive late during Pennsylvania’s primary election.
Trump ally Louis DeJoy was appointed postmaster general and he implemented changes that
slowed down deliveries. He reversed those changes, but on-time rates have not fully rebounded.
Each state has
rules on when mail-in ballots need to be postmarked or received. In addition, ballots need to
meet certain criteria – for example, the signatures need to match the one on file with election officials. Republicans plan to challenge the rules and individual ballots.
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Republican lawyers are preparing possible legal challenges. During the June primary election, they watched Pennsylvania officials count ballots and took note of all the ways they could challenge them, according to the
Atlantic’s Barton Gellman. Trump reportedly has thousands of attorneys to rush to the courthouse on election day, according to
Politico’s Anita Kumar.
Republican state and federal officials could sow more doubt in the results by launching investigations into “voting irregularities”.
In June, Georgetown University professor Rosa Brooks gathered prominents scholars, media members and top Democratic and Republican officials to
simulate possible election scenarios. In one of the scenarios, Trump’s attorney general, Bill Barr, opened an investigation into unsubstantiated allegations of voter fraud and “ties between Democratic officials and antifa”.
Biden’s lawyers are planning a
“voter protection program” to respond to efforts of voter suppression and intimidation. They’ll also have to respond to the Trump campaign’s legal maneuvers.
Democrats could take to the streets to protest Republican interference in the process. In response, Trump could invoke the Insurrection Act to send in active military to “restore order”, much like he did during Black Lives Matter protests in Portland. Trump could also order federal troops to confiscate “fraudulent” ballots. This is what happened during one of Brooks’s simulations.
In another Brooks simulation, Republicans had the postmaster general seize ballots to “safeguard” the election.
In decisive swing states, like Pennsylvania and Florida, Trump could draw out the process and sow doubt in the legitimacy of the results.
States need to settle those disputes before the 8 December safe harbor deadline. Otherwise, Congress can refuse to accept their electors. But what if these swing states have yet to finalize the winner as this deadline approaches?
State legislatures are constitutionally allowed to pick their own electors to vote for president at the electoral college.
Republicans – who control the legislature in swing states like Michigan, Pennsylvania, North Carolina, Florida, Arizona and Wisconsin – could decide that the election results are illegitimate, citing the disputed counting process. So they may declare the counting null and void, and select electors to support Trump. This is an actual scenario a Trump campaign legal adviser discussed with the
Atlantic’s Gellman.
If Republican legislatures try picking their own electors, Democratic governors could argue that the vote was legitimate and that the state has already elected a winner. So they could send a certificate of the results to the National Archives and choose a
separate group of Democratic electors.
When presidential electors meet
in their respective state capitols to vote for president on 14 December, two groups of electors could show up and try to cast a vote. These electors could be the deciding votes in the presidential election.
In short, both parties would argue they have a claim to the presidency.
The laws that govern this scenario aren’t very clear about what should happen. This is the constitutional crisis election scholars worry about.
Foley, the election scholar, has
explored the various ways this scenario could be settled.
One interpretation of the 12th amendment says the president of the Senate – who is the vice president – decides which electors congress should accept. So he would make Trump the winner.
If a state sends two separate groups of electors, neither would have higher standing in the eyes of Congress so neither of them counts. From there, the candidate with more electoral votes – not counting any votes from the disputed states – would win.
Under another interpretation of the Electoral Count Act, the valid electors are the ones the governor certifies after votes are counted. This would only require one chamber of congress to vote for it.
If Congress can’t agree on a solution, Democrats would argue the line of succession means that the speaker of the House, Nancy Pelosi, assumes the role of acting president until Congress can agree. But Foley writes that Republicans are unlikely to accept that outcome, and could move to inaugurate Trump to a second term.
These disputes go to the supreme court, and a new 6-3 conservative majority – with the new Trump nominee, Amy Coney Barrett – could make a ruling in favor of Trump. This would jeopardize the appearance of political impartiality the court has long tried to maintain.
In short, the nightmare scenario is Democrats and Republicans disagreeing on the rightful winner of the election.
Even if it doesn’t get that far, it’s very possible the presidency may be decided in the weeks after election day, rather than on election night. Those fraught events could decide whether America has a clear, democratically elected leader.
Source: US Politics - theguardian.com
