American Exceptionalism Part 14: The Fire this Time -The Possibility of Election Chaos

Note: This post was written before President Trump contracted the novel coronavirus. His illness complicates the analysis below.  There are 3 possible scenarios as to how the President’s illness affects the election:

1. He recovers quickly and the impact on the dynamics of the race are minimal.
2. He recovers quickly but is affected by his brush with death and is much more restrained in fighting the election results.
3. He dies or is too ill to carry on.  That leads to a whole other set of imponderables.

What follows is the original post.

In my last post I detailed three presidential elections where the outcome was in question and the ways in which the political system managed to avoid catastrophe.  By its very nature, our system of indirect election of the President is fragile.  In the last six elections, the average popular vote difference between the winner and the second-place finisher was 4.9 million votes. The smallest difference was in 2000 when Al Gore won by 543,000 votes. It’s very unlikely that challenges and recounts could ever put in question a victory by that margin. But the Electoral College results have been much closer.  In 2000, the Electoral College results were 271-266; in 2004, the results were 286-251. 

What does the election calendar look like?

November 3, 2020 –Election Day

December 8, 2020 –“Safe Harbor” Date: Deadline for states to choose electors to send slates to Congress

December 14, 2020 –Electors meet in their state capitals and cast their votes

January 4, 2021 –New Congress is sworn in

January 6, 2021 –Congress tallies electoral votes and declares a winner

January 20, 2021—New President is sworn in

The legal foundation of our electoral system is both murky and fragile. As Barton Gelman writes in The Atlantic, “in this election year of plague and recession and catastrophized politics, the mechanisms of decision are at meaningful risk of breaking down. Close students of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result.” What could lead to this crisis?

First, no meaningful resolution is reached by the critical dates.  Gelman writes, “In most modern elections these have been pro forma milestones, irrelevant to the outcome. This year, they may not be.”

First likely truth: Donald Trump will never concede the election. If compelled to leave the White House, he will continue to argue that the election was rigged and that he was the man elected by the American people. When asked if he would respect the election results, he told Chris Wallace during the third debate in 2016, “What I’m saying is that I will tell you at the time. I’ll keep you in suspense. Okay?”

A second likely truth is that Trump and his allies will claim the results must be dismissed because of voter fraud. However, as Gelman writes, “Voter fraud is a fictitious threat to the outcome of elections, a pretext that Republicans use to thwart or discard the ballots of likely opponents. An authoritative report by the Brennan Center for Justice, a nonpartisan think tank, calculated the rate of voter fraud in three elections at between 0.0003 percent and 0.0025 percent. Another investigation, from Justin Levitt at Loyola Law School, turned up 31 credible allegations of voter impersonation out of more than 1 billion votes cast in the United States from 2000 to 2014. Judges in voting-rights cases have made comparable findings of fact.” But truth has never been a problem for Trump, who has been reported as telling 23.3 lies a day. And Trump’s supporters have never been critical of his lies. 

The third truth is that there is a “bomb” in the electoral college law that may go off this year.  Most observers believe this “bomb” is a dud. Gelman argues that there is no requirement that the state legislatures, which have the power to choose electors, must follow the voters’ preferences. Article II of the constitution provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the late 19th century, every state has ceded the decision to its voters. Even so, the Supreme Court affirmed in Bush v. Gore that a state “can take back the power to appoint electors.” How and when a state might do so has not been tested for well over a century.  And most legal scholars believe that state legislatures are bound to state laws which require electors to be chosen in line with the popular vote (winner-take-all in all states except Maine and Nebraska). Legislatures have given this power to the people and most scholars would argue that they can’t take it back.

A potential reason for the legislature to reject the popular vote is because it holds that the vote is fraudulent. There are a number of issues here. First, 2020 is expected to have a large number of mail-in ballots (perhaps more than 50%). It is widely expected that Republicans will tend to vote in person and Democrats to tend to vote by mail.  That could lead to a substantial “blue shift,” with election night results seeming to favor the Republicans, and that red advantage shifting to blue as mail-in ballots are counted. Two likelihoods emerge from this “blue shift.”

As in 2000, it may be quite a while until a decision is clear, especially if the election is close.  Forty-one states can’t even begin authenticating mail-in ballots, let alone count them, until after all election-day.  So, many states won’t be able to pick a winner for some time. The possible shift from a Trump election night victory to a Biden victory as a result of mail-in ballots will almost certainly lead to claims by Trump of a rigged election, with all the chaos that would create.

In Ray v. Blair (1952), the Supreme Court ruled that state parties can require electors to pledge to vote for their parties’ nominee before they are certified as electors, thus eliminating the possibility of “faithless electors.”  Of greater interest than the decision is the opinion of Justice Robert Jackson, who wrote in dissent, “The demise of the whole electoral system would not impress me as a disaster. At its best, it is a mystifying and distorting factor in presidential elections which may resolve a popular defeat into an electoral victory. At its worst, it is open to local corruption and manipulation, once so flagrant as to threaten the stability of the country. To abolish it and substitute direct election of the President, so that every vote, wherever cast, would have equal weight in calculating the result, would seem to me a gain for simplicity and integrity of our governmental processes.”

Further confusion could be sown when it comes to certify electors. Following election day, the states are to count and eventually certify the vote according to their respective statutory and procedural requirements. When the states have completed the vote count and ascertained the official results, the U.S. Code (3 U.S.C. §6) requires the state governors to prepare, “as soon as practicable,” Certificates of Ascertainment of the vote. The certificates must list the names of the electors chosen by the voters and the number of votes received in the popular election results, the names of all other candidates for elector, and the number of votes they received. Certificates of Ascertainment, which are often signed by state governors, must also carry the seal of the state. One copy is forwarded to the Archivist of the United States (the Archivist), while six duplicate copies of the Certificate of Ascertainment must be provided to the electoral college delegation in each state, not later than the date on which they are scheduled to meet—December 14, 2020.

This is where controversies over votes could arise. In most states, legislatures determine electors, and while they are required by law to follow the popular vote, it is possible, if unlikely, for legislatures to hold that the vote is so flawed by corruption or incompetence that the legislatures are unable to determine the popular vote winner by December 8. Without a valid popular vote to go by, legislatures are still responsible to choose electors.  Republicans control the legislatures in six battleground states: Arizona, Florida, Michigan, North Carolina, Pennsylvania and Wisconsin.  However, all but two of these states have Democratic governors. It is possible, if the legislatures choose a different slate of electors than the voters elected, the Democratic governor could refuse to certify the choices of the legislature and send Congress their own slate.

The next key date is January 6, 2021. which is the date that Congress counts the electoral votes. Note that the new Congress will be sworn in on January 4, 2021. There are four possible outcomes of the 2020 election: 1) both houses are controlled by the Republicans; 2) both houses are controlled by the Democrats; 3) the Republicans control the Senate while the Democrats control the House; and 4) the Democrats control the Senate and the Republicans control the House. In all cases Vice-President Pence remains as President of the Senate (though non-voting unless there is a tie) until a new vice-president is sworn in on January 20, 2021.

In most years, the counting of the electoral vote is pro forma. However, if more than one slate of electors reaches the Congress, the next steps are unclear.  The Constitution itself says remarkably little relevant to this topic, and what it does say is shockingly ambiguous. Here is the applicable text of the Twelfth Amendment:

“[T]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

“The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”

According to Edward Foley, “The first thing to observe about this constitutional language is that the critical sentence is written in the passive voice: ‘the votes shall then be counted.’ Here, thus, is the first frustrating ambiguity. It could be the ‘President of the Senate’ who does the counting; or, after the President of the Senate has finished the role of ‘open[ing] the certificates’ then the whole Congress, in this special joint session, collectively counts the electoral votes.

“Either way, this language contains no provision for what to do in the event of a dispute, whether with respect to the “certificates” to be “open[ed]” or with respect to the “votes” contained therein. It certainly says nothing about what to do if the President of the Senate has received two conflicting certificates of electoral votes from the same state, each certificate purporting to come from the state’s authoritatively appointed electors.”  Foley goes on at great length to describe what happens next. Suffice to say that scholars disagree. What seems certain is that whatever the Congress decides will be challenged in the courts.

Gelman’s article ends with the possibility of no resolution by January 21. Much depends on who controls the Senate and the House, what the Supreme Court is willing to say, whether the new ninth Supreme Court Justice recuses herself from any court decisions on the election, how much conflict there is between governors and legislatures and whether legislatures will actually refuse to choose electors based on the popular election.

Fourth likely truth.  Whatever happens there’s going to be a lot of litigation. As we all know the President and Senator McConnell have been particularly single-minded and successful at appointing Republican federal judges.  There are hundreds of cases in the federal courts concerning efforts by states to suppress the vote. Mark Joseph Stern, wrote in Slate in July“Over the last two weeks, the federal judiciary has delivered a blunt message to Americans who stand to be disenfranchised in this year’s election: You’re on your own.

“In a dizzying succession of rulings, courts are laying the groundwork for a chaotic Election Day. One appeals court allowed Wisconsin to reinstate its dramatic cutback on early voting in a startling opinion that explicitly authorizes lawmakers to manipulate election laws for partisan gain. Another appeals court blocked a lower court decision that protected indigent ex-felons’ ability to vote in Florida. The Supreme Court also delivered a one-two punch, first allowing Texas to impose discriminatory limits on mail-in voting, then reversing a decision that eased voting restrictions in Alabama due to the pandemic. Taken together, these moves indicate that a growing number of federal judges—and five justices on the Supreme Court—have simply abdicated their responsibility to safeguard voting rights. This election was already a fraught battle over the future of American democracy; now courts are retreating from the fight, leaving voters to fend for themselves.”

You can track voter cases at https://www.scotusblog.com/election-litigation/. 

Finally, there is the fifth truth. The President may refuse to leave office however the legal process plays out. The military and police forces can be expected to follow the law, and forcibly remove Trump, but he could encourage his followers to take to the streets. What could follow is months, if not years, of protest, violence and actual rebellion. May God bless the United States of America if we get to this point.

Conclusions. The election of 2020, conducted during a time of extreme partisanship and in the middle of a pandemic, may be unusually chaotic. Much of the chaos can be averted by either a Trump victory or a “Blue Wave” election. If Biden’s victory margin is 6% or greater it’s likely the election will be a “hot mess” for a week, but will ultimately settle down and follow normal procedures. The closer the election, the greater the chances of chaos and civil unrest.