The race to elect the next President of United States of America gets more intricate and exciting even as results from several key states pour in. As expected, President Donald Trump prematurely declared victory over Democrat rival Joe Biden — a move the Democrats had anticipated, warning that Trump would seek to dispute the election results.
If the election actually gets into dispute, there are several legal and political battles that may eventually decide the presidency. The candidates, however, need to find a solution before January 20 or the Speaker of the House becomes the acting President.
Here are the possible ways the winner could be decided:
Moving the court
The trend so far shows Democrats are voting by mail in far greater numbers than Republicans. In states such as Pennsylvania and Wisconsin that do not count mail-in ballots until Election Day, initial results appeared to favour Trump because they were slower to count mailed ballots. Democrats fear that Trump would, as he did on Wednesday, declare victory before those ballots could be fully tallied.
Chances of a resounding victory for either President Trump or Joe Biden in the race for the White House evaporated Tuesday night. By Wednesday morning, both parties had already dispatched hundreds of lawyers as swing states counted mail ballots. https://t.co/mRP8XbXiao
— The New York Times (@nytimes) November 4, 2020
A close fight may lead to litigation over voting and ballot-counting procedures in critical constituencies, called the “swing states”. The matter may eventually land in the US Supreme Court, as it happened with Florida’s election in 2000, when Republican George W Bush prevailed over Democrat Al Gore by just 537 votes after the high court halted a recount.
Amy Coney Barrett was appointed Supreme Court chief justice by Trump a few days before the election, thus creating a 6-3 conservative majority in favour of Trump if the courts weigh in on a contested election.
“We want the law to be used in a proper manner. So we’ll be going to the US Supreme Court. We want all voting to stop,” Trump said on Wednesday. US laws, however, require all votes to be counted, and many states routinely take days to finish counting legal ballots.
Electoral college – The decision makers
The US president is not elected by a majority of the popular vote. The winner gets a majority of the 538 electors, known as the Electoral College. In 2016, Trump lost the national popular vote to Democrat Hillary Clinton but secured 304 electoral votes against the 227 she got.
Typically, the candidate who wins each state’s popular vote also earns that state’s electors. The electors shall meet on December 14 to cast votes. Both chambers of Congress will meet on January 6 to count the votes and name the winner.
The governors stamp their approval on the results in their respective states and share the information with Congress. But it is possible in a closely contested battle that the governor and the legislature submit two different election results. The states of Pennsylvania, Michigan, Wisconsin and North Carolina have Democratic governors but legislatures are under Republican control.
Legal eagles aren’t sure if Congress should accept the governors’ electoral slate or not count the states’ electoral votes at all.
In 2000, the Florida legislature (dominated by the Republicans) considered submitting its own electors before the Supreme Court. The move ended the contest between Bush and Gore.
As things stand today, Republicans control the Senate while Democrats have a majority in the House of Representatives. The electoral count, however, is conducted by the new Congress, which will be sworn in on January 3.
What happens if the Senate and House disagree on a candidate? Nobody knows what would happen.
The constitution says the will of the electors approved by each state’s “executive” shall prevail. Some scholars say the state governors’ word is the final word, but not all agree. As a matter of fact, this aspect of the law has never been tested or interpreted by the courts before.
In case of a dispute between the two chambers, another possibility is that Vice-President Mike Pence, as the Senate president, may attempt to throw out a state’s disputed electoral votes entirely.
If such a situation arises, the Electoral College Act does not provide any clarity on whether a candidate would still need 270 votes, a majority of the total, or could prevail with a majority of the remaining electoral votes.
The candidates may approach the Supreme Court in such a scenario, but will the court be willing to suggest how Congress should count electoral votes? Unlikely.
‘Contingent election’ – The last resort
If neither Trump nor Biden gets a majority of electoral votes, then “contingent election”, under the 12th Amendment of the Constitution, is a possible solution. Effectively, it means the House of Representatives chooses the president, while the Senate selects the Vice-President.
The “contingent election” plan can be explored even in the case of a 269-269 tie between the two candidates.
“It is fair to say that none of these laws has been stress-tested before,” Benjamin Ginsberg, a lawyer who represented the Bush campaign during the 2000 dispute, told reporters on October 20.
The Republicans and the Democrats may choose any of the above options to contest their claim, but as per the US Constitution, the deadline to select the President is January 20, 2021, the day the present President’s term ends.
Considering a possibility that the US still does not get a President by January 20, then under the Presidential Succession Act, the Speaker of the House would serve as acting president. Nancy Pelosi, a Democrat from California, is the current speaker.