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Despite incomplete results from several battlefield states that could determine the outcome of the US presidential race, President Donald Trump today proclaimed victory over Democratic challenger Joe Biden.
The premature move confirmed concerns Democrats had voiced for weeks that Trump would seek to dispute the election results.
That could set off a series of legal and political dramas in which the presidency could be determined by some combination of the courts, state politicians, and Congress.
Here are the various ways the election can be contested:
Lawsuits
Early voting data shows that Democrats are voting by mail in much greater numbers than Republicans. In states like Pennsylvania and Wisconsin that don’t count mail-in ballots until Election Day, initial results appeared to favor Trump because they were slower to count mail-in ballots.
Democrats had expressed concern that Trump, as he did today, would declare victory before those ballots could be fully counted.
A closed election could result in litigation over voting and counting procedures in battle states.
Cases brought in individual states could eventually make it to the United States Supreme Court, as did the Florida election in 2000, when Republican George W Bush prevailed over Democrat Al Gore by just 537 votes in Florida after the top cut stopped a count.
Trump appointed Amy Coney Barrett as Supreme Court justice just days before the election, creating a conservative 6-3 majority that could favor the president if the courts intervene in a contested election.
“We want the law to be used properly. So we will go to the Supreme Court of the United States. We want the voting to stop,” Trump said today, although electoral laws in the United States require that all votes be counted, and many states typically take days to finish counting legal ballots.
Electoral College
The president of the United States is not elected by a majority of the popular vote. According to the Constitution, the candidate who obtains the majority of 538 voters, known as the Electoral College, becomes the next president.
In 2016, Trump lost the national popular vote to Democrat Hillary Clinton, but garnered 304 electoral votes out of her 227. The candidate who wins the popular vote in each state generally wins the electors of that state. This year, voters meet on December 14 to cast votes. Both houses of Congress will meet on January 6 to count the votes and name the winner.
Governors typically certify results in their respective states and share the information with Congress.
But some scholars have outlined a scenario in which the governor and the legislature in a highly contested state present 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 not clear whether Congress should accept the governor’s electoral list or not count the electoral votes of the state.
While most experts view the scenario as unlikely, there is a historical precedent. The Republican-controlled Florida legislature considered introducing its own constituents in 2000 before the Supreme Court ended the Bush-Gore contest. In 1876, three states appointed “grieving voters,” prompting Congress to pass the Electoral Counting Act (ECA) in 1887.
Under the law, each house of Congress would decide separately which list of “grieving voters” to accept.
As of now, Republicans hold the Senate while Democrats control the House of Representatives, but the electoral count is done by the new Congress, which will be sworn in on January 3.
If the two houses do not agree, it is not entirely clear what would happen.
The law says that the voters approved by the “executive” of each state must prevail. Many scholars interpret that as the governor of a state, but others reject that argument. The law has never been tested or interpreted by the courts.
Ned Foley, a law professor at Ohio State University, called the ECA’s wording “virtually impenetrable” in a 2019 document exploring the possibility of a dispute at the electoral college.
Another unlikely possibility is that Trump’s vice president, Mike Pence, in his role as president of the Senate, may attempt to rule out a state’s disputed electoral votes entirely if the two houses cannot agree, according to Foley’s analysis. .
In that case, the Electoral College Law does not clarify whether a candidate would still need 270 votes, a majority of the total, or could prevail with the majority of the remaining electoral votes, for example, 260 of the 518 votes that would be dropped if the electors Pennsylvania were invalidated.
“It’s fair to say that none of these laws have been stress-tested before,” Benjamin Ginsberg, a lawyer who represented the Bush campaign during the 2000 dispute, told reporters in an Oct. 20 conference call.
The parties could ask the Supreme Court to resolve any deadlock in Congress, but it is not certain that the court is willing to decide how Congress should count electoral votes.
‘Contingent choice’
A determination that none of the candidates obtained a majority of the electoral votes would trigger a “contingent election” under the 12th Amendment to the Constitution. That means that the House of Representatives elects the next president, while the Senate elects the vice president.
Each state delegation in the Chamber gets only one vote. So far, Republicans control 26 of the 50 state delegations, while Democrats have 22; one is evenly divided and another has seven Democrats, six Republicans and a Libertarian.
A contingent election is also held in the event of a 269-269 tie after the election; There are several plausible paths to a standstill in 2020.
Any electoral dispute in Congress would unfold before a strict deadline: January 20, when the Constitution orders the term of the current president to end.
Under the Presidential Succession Act, if Congress has not yet declared a presidential or vice-presidential winner by then, the Speaker of the House would act as interim president. Nancy Pelosi, a Democrat from California, is the current speaker.
Latest US Election Stories
‘We want the voting to stop’ – Trump
While Democrat Joe Biden has expressed confidence in his chances, President Donald Trump has gone one step further, already proclaiming victory and saying that he will go to the Supreme Court to get his way.
The Republican said in a speech at the White House that “we want all voting to stop,” which apparently means that he wants to stop the counting of mail-in ballots that can be legally accepted by state election boards after yesterday’s election. .
Democrats are believed to have cast more mail-in votes than Trump supporters, and Republicans have already signaled that they will pursue an aggressive strategy in Pennsylvania to have votes that came in after the election nullified.
Tom Wolf, the state’s Democratic governor, responded today, tweeting that one million votes remained to be counted.
“I promised Pennsylvanians that we would count every vote and that’s what we are going to do,” he said.
The state’s highest court ordered a three-day extension that the U.S. Supreme Court refused to block, but said it could review the issue after the election, and the promotion of new conservative Justice Amy Coney Barrett could prove decisive in that decision.
Speaking on RTÉ’s Morning Ireland, Democratic strategist and political and communications consultant Patrick Mellody said that going to the Supreme Court “isn’t even the way it works” and that you have to go to state courts first.
Mellody, who is from Pennsylvania, said counting there would take a little longer and that’s what to do in a democracy.
Democratic Party strategist Jimmy Ryan said America is still a democracy and that requires the votes to be counted.
“The only one who has played mischief with the election is Donald Trump, who is the ‘thief in chief,'” he said.
Ryan said he did not believe this election would be resolved in the Supreme Court, but that the votes will be counted and Joe Biden will be the elected president of the United States.
Participation of the Supreme Court
Florida, with its coveted 29 Electoral College votes, has long been a headache for pollsters to call, and in 2000 it blew a hole in the Democrats’ dreams of victory.
Al Gore and George W. Bush’s fight for the White House will always be remembered for the pivotal role played by the “hanging chads” sparked by Florida’s controversial punch card voting system.
With the results of the other 49 US states dropping the two candidates side by side, it was the Sunshine State that had the deciding vote.
Commentators initially called the state in favor of Gore, but then returned it to “too close to call” before declaring Bush victory.
What followed were multiple stories and a legal fight that ended in the Supreme Court, which eventually saw Bush take the presidency.
He officially won by just 537 votes in the state with a 6.1 million turnout.
The ambiguity of the result was attributed to the hanging chads – a voting card that had not been carefully punched, so it was not counted by tabulating machines.
The voting cards that had a clear indentation but no holes were called “pregnant chads”, while the “swinging chads” were still attached at two corners, which also led to the votes being discarded.
Gore sought a recount of a small sample of Florida’s disputed ballots, and an estimated 2.9% of the votes cast never reached certified totals.
Attorneys for the Democrat launched a bid for a recount of the 1.8 million votes cast in four predominantly Democratic counties, before asking for more recount elsewhere.
The Florida Supreme Court ordered a statewide recount of “insufficient votes”, a ballot that does not clearly indicate voter preference, on Dec. 8.
It was apparently a huge victory for Gore, but he was arrested the next day by the United States Supreme Court and legal action returned to state courts.
On December 13, the closest presidential race in decades finally ended 36 days after Election Day after a 5-4 vote by the US Supreme Court that allowed Bush’s victory to stand.
Gore accepted the verdict, and with that, Bush addressed the White House.
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