In anticipation of a COVID induced, unprecedented and overwhelming surge of voting by mail, and with the backdrop of a bitterly divided electorate, options markets have been pricing in historic levels of volatility around the upcoming US presidential elections of November 3.
And already this week the electoral battleground state of Pennsylvania was turned into a legal battleground as the state Supreme Court, anticipating of a flood of mail-in ballots, ruled that votes could be tabulated up to three days after the November 3 election date, a ruling that was quickly challenged by the Pennsylvania Republican Party seeking an injunction in anticipation of a US Supreme Court challenge.
*** But far more problematic than the delay by a few days in the tabulation of final vote counts is the potential for challenges to the integrity of some state vote count results which could lead to a constitutional crisis more severe than Bush v. Gore in 2000. One mechanism for that would be through the extremely controversial, but not impossible, assignment of conflicting and competing electors in the case of disputed results by a state’s executive and legislative branches. ***
*** The Constitution and Federal Law leave room for state legislatures to send electoral instructions to Congress, a highly provocative challenge to be sure, but one that we believe should not be ruled out if there is a deep enough battle and divide over any state’s real vote count. With that in mind, the Trump administration concerns and ringing of the alarm bells over the potential for fraud in mass mail voting could be a much more serious warning than simple political posturing. ***
Challenging the Mail-in Ballots
Individual state governors and secretaries are required by Congress to send by December 14 a “certificate of ascertainment” to the President of the Senate and the National Archives and Record Administration (NARA) listing the names of the electors appointed and the number of votes cast for each candidate. That means any dispute over final vote tallies is supposed to be resolved (internally, by the state) by then, or to be more precise, six days before that, by December 8 (“Date for Determination of Controversy as to the Appointment of Electors” – NARA, The 2020 Presidential Election; Provisions of the Constitution and U.S. Code).
Braced for the non-trivial possibility that certain states’ election results could indeed end in disputes that would require the final certification of a victor by their respective governors and secretaries of state, Democratic party officials have found solace in the fact that in four large battleground states — Pennsylvania, Michigan, Wisconsin, and North Carolina — those positions are currently held by members of their own party.
But again, under the Constitution and Federal Law, there is room for state legislatures to send electoral instructions to Congress, which would trigger all sorts of immense political complications and controversy.
Specifically, Article II of the US Constitution also gives state legislatures the authority to directly appoint presidential electors, and Chapter 1 of Title 3, United States Code (62 Stat. 672, as amended), Section 2, reads: “Whenever any State has held an eIection for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
In case that seems to stretch credulity, that is exactly what the Florida state legislature was preparing to do in 2000, before the US Supreme Court stepped in to put a stop to the vote recount.
The Significance of December 8
The “day prescribed by law” is the previously referenced December 8, 2020. And as it is called, that “safe harbor” provision – a term that veterans of the Florida “hanging chad” Bush/Gore 2000 crisis may remember well — is intended to cut off challenges, and along with subsequent statute, precludes efforts to retroactively switch electoral instructions rules after the November 3 election date.
But a parallel and conflicting set of instructions could be sent to the National Archives and Congress (or more accurately, to the President of the Senate, which is Vice President Mike Pence) by state legislatures if they reject the instructions of a disputed vote count by the secretary of state before that date, or a governor could refuse to certify results. The legislatures of course would have to agree to cross that constitutional Rubicon. Incidentally, all four of the battleground states mentioned above have bicameral, Republican legislatures.
To counter allegations of changing the traditional rules of the road, a challenge or parallel set of instructions could be predicated on the invocation of an emergency — the example of cyberattacks is cited by Ohio State legal scholar Edward Foley (“Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management,” 2019). Or perhaps it could be through the invocation of allegations of fraud – which is where perception and popular opinion could very much matter.
The Shape of a Stalemate and National Crisis
What happens then if there are conflicting electors? If both the House and Senate agree on which of the two conflicting electoral instructions to choose from, there is no problem. But if the House and Senate disagree, in the case of conflicting electoral instructions for a given state, the Electoral Count Act of 1887 appears to require Congress to take the certificate that bears the governor’s signature.
However, Foley notes that some judicial experts, including in a 2001 memo from the highly regarded Congressional Research Service, assert that “when multiple submissions from the same state all claim safe harbor protection, none can be counted unless both houses of Congress agree upon which submission is entitled to this safe harbor status” [our italics added]. That would open the possibility that an entire state’s electoral votes may not be counted and would open a full-bore constitutional crisis.
If the electoral count dispute remains unresolved and no candidate has “qualified” for the presidency, Republicans could claim the presidency under the Twelfth Amendment to the Constitution stipulation that the president be the winner of the “majority of the whole number of electors appointed,” which would imply the majority could be calculated off of a denominator of electors that excludes the disputed electoral votes (i.e., less than 270/538). But the Democrats at that point would also have some powerful cards to play.
Invoking the Twelfth and Twentieth Amendments
That alternative path also lies through the Twelfth Amendment, whereby if “no person have such majority [of the whole number of Electors appointed] … the House of Representatives shall choose immediately, by ballot, the President [from the Presidential candidates].” There is, however, a twist to that provision, in that the presidential candidate would need to garner not just a majority of the House member votes, but also a majority of states represented, a provision that would squeeze a little power back towards the vastly outnumbered House Republicans and away from, from example, the large California contingent of Democrats.
If (bear with us) the House cannot select a president through that process, or the Senate a vice president through a parallel process, the Twentieth Amendment to the Constitution finally allows Congress to “provide for a case wherein neither a President elect nor a Vice President elect shall have qualified.” Under the “succession statute” enacted by Congress, that would mean Speaker of the House Nancy Pelosi would resign from the Speaker position to take the role of Acting President.
All of that is to underscore the critical importance to the country, whatever one’s political stripe, of a decisive victory in November by either President Donald Trump or former Vice-President Joseph Biden, and of maintaining the utmost confidence and integrity in the voting process and tabulations.