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By Joseph Ax
(Reuters) – Despite incomplete results from various states on the battlefield that could determine the outcome of the US presidential race, President Donald Trump proclaimed victory over Democratic challenger Joe Biden on Wednesday.
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:
DEMANDS
Early voting data shows that Democrats are voting by mail in much greater numbers than Republicans. In states like Pennsylvania and Wisconsin, which don’t count mail-in ballots until Election Day, initial results seemed to favor Trump because they were slower to count mail-in ballots. Democrats had expressed concern that Trump, as he did on Wednesday, 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 filed in individual states could eventually make it to the United States Supreme Court, as happened in the 2000 Florida election, when Republican George W. Bush prevailed over Democrat Al Gore by just 537 votes in Florida after the High court stopped a recount.
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 Wednesday, although electoral laws in the United States require counting, 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 won 304 electoral votes to her 227.
The candidate who wins the popular vote of 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 designated “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 article exploring the possibility of an electoral college dispute.
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 a conference call on October 20.
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 neither candidate 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.
(Information by Joseph Ax and Brad Heath, Editing by Soyoung Kim)
