Explainer: What might happen if U.S. election result is disputed?

[snoop1130]

Explainer: What might happen if U.S. election result is disputed?

By Joseph Ax

 

FILE PHOTO: A general view of the White House in Washington, U.S., October 7, 2020. REUTERS/Leah Millis/File Photo

 

(Reuters) - Despite incomplete results from several battleground states that could determine the outcome of the U.S. presidential race, President Donald Trump proclaimed victory over Democratic challenger Joe Biden on Wednesday.

 

The premature move confirmed worries Democrats had voiced for weeks that Trump would seek to dispute the election results. That could set off any number 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 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 favor Trump because they were slower to count mailed ballots. Democrats had expressed concern that Trump would, as he did on Wednesday, declare victory before those ballots could be fully tallied.

 

A close election could result in litigation over voting and ballot-counting procedures in battleground states. Cases filed in individual states could eventually reach the U.S. Supreme Court, as Florida’s election did in 2000, when Republican George W. Bush prevailed over Democrat Al Gore by just 537 votes in Florida after the high court halted a recount.

 

Trump appointed Amy Coney Barrett as Supreme Court justice just days before the election, creating a 6-3 conservative majority that could favor the president 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 U.S. Supreme Court. We want all voting to stop,” Trump said on Wednesday, even though election laws in U.S. states require all votes to be counted, and many states routinely take days to finish counting legal ballots.

 

ELECTORAL COLLEGE

The U.S. president is not elected by a majority of the popular vote. Under the Constitution, the candidate who wins the majority of 538 electors, known as the Electoral College, becomes the next president. In 2016, Trump lost the national popular vote to Democrat Hillary Clinton but secured 304 electoral votes to her 227.

 

The candidate who wins each state’s popular vote typically earns that state’s electors. This year, the electors meet on Dec. 14 to cast votes. Both chambers of Congress will meet on Jan. 6 to count the votes and name the winner.

 

Normally, governors certify the results in their respective states and share the information with Congress.

 

But some academics have outlined a scenario in which the governor and the legislature in a closely contested state submit two different election results. Battleground states of Pennsylvania, Michigan, Wisconsin and North Carolina all have Democratic governors and Republican-controlled legislatures.

 

According to legal experts, it is unclear in this scenario whether Congress should accept the governor’s electoral slate or not count the state’s electoral votes at all.

 

While most experts view the scenario as unlikely, there is historical precedent. The Republican-controlled Florida legislature considered submitting its own electors in 2000 before the Supreme Court ended the contest between Bush and Gore. In 1876, three states appointed “dueling electors,” prompting Congress to pass the Electoral Count Act (ECA) in 1887.

 

Under the act, each chamber of Congress would separately decide which slate of “dueling electors” to accept. As of now, Republicans hold the Senate while Democrats control the House of Representatives, but the electoral count is conducted by the new Congress, which will be sworn in on Jan. 3.

 

If the two chambers disagree, it’s not entirely clear what would happen.

 

The act says that the electors approved by each state’s “executive” should prevail. Many scholars interpret that as a state’s governor, 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 paper exploring the possibility of an Electoral College dispute.

 

Another unlikely possibility is that Trump’s Vice President Mike Pence, in his role as Senate president, could try to throw out a state’s disputed electoral votes entirely if the two chambers cannot agree, according to Foley’s analysis.

 

In that case, the Electoral College Act does not make clear whether a candidate would still need 270 votes, a majority of the total, or could prevail with a majority of the remaining electoral votes - for example, 260 of the 518 votes that would be left if Pennsylvania’s electors were invalidated.

 

“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 in a conference call on Oct. 20.

 

The parties could ask the Supreme Court to resolve any congressional stalemate, but it’s not certain the court would be willing to adjudicate how Congress should count electoral votes.

 

‘CONTINGENT ELECTION’

A determination that neither candidate has secured a majority of electoral votes would trigger a “contingent election” under the 12th Amendment of the Constitution. That means the House of Representatives chooses the next president, while the Senate selects the vice president.

 

Each state delegation in the House gets a single vote. As of now, Republicans control 26 of the 50 state delegations, while Democrats have 22; one is split evenly and another has seven Democrats, six Republicans and a Libertarian.

 

A contingent election also takes place in the event of a 269-269 tie after the election; there are several plausible paths to a deadlock in 2020.

 

Any election dispute in Congress would play out ahead of a strict deadline - Jan. 20, when the Constitution mandates that the term of the current president ends.

 

Under the Presidential Succession Act, if Congress still has not declared a presidential or vice presidential winner by then, the Speaker of the House would serve as acting president. Nancy Pelosi, a Democrat from California, is the current speaker.

 

-- © Copyright Reuters 2020-11-04

 

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[YetAnother]

1 hour ago, snoop1130 said:

What might happen if U.S. election result is disputed?

not MIGHT happen, WILL happen; trump said this months ago

[Tounge Thaied]

That's a lot of pretentious bilgewater just to say Trump instigated the legal challenge... ????

[herfiehandbag]

25 minutes ago, Tounge Thaied said:

That's a lot of pretentious bilgewater just to say Trump instigated the legal challenge... ????

It seems a rather clear, informative piece to me.

[JustAnotherHun]

If things escalte the EU will have to start a peace keeping mission. Rainbow Helmets or so ????

[Emdog]

What will happen? Scads of lawyers will be able to upgrade their "mia noi's" or beemers.

FYI after partisan SCOTUS gave election to Bush (they knew decision stank, didn't sign opinion & said it wouldn't set precedent), the hand counting was done.

Gore won by 171 in Florida.

 

[Jeffr2]

11 hours ago, Tounge Thaied said:

That's a lot of pretentious bilgewater just to say Trump instigated the legal challenge... ????

Ummm....it's all been initiated by Trump.  Even his closest advisors and allies are saying to give it up.  He won't.  Go figure. ????

 

Doesn't matter, the results aren't that close.

[Tug]

You can be sure donald will try to contest it don’t think he will succeed with it though and love the bilge water analogy a rather pungent foul bilge water imo lol

[nobodysfriend]

13 hours ago, snoop1130 said:

Democrats had voiced for weeks that Trump would seek to dispute the election results. That could set off any number of legal and political dramas in which the presidency could be determined by some combination of the courts, state politicians and Congress.

 

 

Donald took good care for a majority of republican judges in the supreme court .

He prepared his next move , if he loses , very well ...

I do not think that he has the intention of leaving the oval office peacefully .

He will take it to the streets , his ' proud boys ' and many of his heavily armed supporters are on standby ...

I hope I am wrong .

[Katipo]

It's not an 'if', it's a 'when'... at least if Biden wins. Trump will never concede, ever. It's not in his nature. Until the day he dies he will maintain that the election was stolen. That's just the type of person he is.

 

If Trump wins, there may be some challenges, but not to the same extent. Biden at least has enough dignity to concede.

 

I'm not a great fan of either men, but from a global perspective, Biden is the better choice.

[cmarshall]

If Trump can succeed in getting a critical case appealed up to the Supreme Court he will win.  Three current justices: Roberts, Kavanaugh, and Barrett were part of the legal team of Bush v. Gore that succeeded in achieving a judicial coup in 2000 that gave the election illegally to Bush.  Indeed, the fact that they are on the Court now is partly as reward for their efforts in 2000.  So, it seems very likely that, given the chance, they will pull off another judicial coup in Trump's favor because of... reasons.  

 

Now that right-wing extremist and cult member, Barrett is on the Court we can expect Roberts, as an unnecessary vote, to decline to vote in Trump's favor for PR reasons.  So, I expect any such case to be decided 5 to 4 in Trump's favor for a successful judicial coup.

[Tounge Thaied]

11 hours ago, herfiehandbag said:

It seems a rather clear, informative piece to me.

Most people on this controlled forum will agree with you. I would have a lot more thoughtful response, but sadly I am not allowed to speak freely on this platform. Opposing healthy debate is unfortunately censored here. It's a sign of the ever widening divisive nature occurring now... Even this comment may get me banned. 

Edited November 5, 2020 by Tounge Thaied
spelling and content

[mtls2005]

The only way trump gets to 270 is to lose 50 lbs.

[Tarteso]

Long time waiting for this moments...Bad looser, Mr. Trump

[thailand49]

He throws things out there just in case!  The case now is he is too far behind to win so nothing to contest!  Really an non-issue!

[Chomper Higgot]

We’ve known for a while Trump doesn’t read, it seems he can’t count either.

[Jingthing]

This is  2020.

Not 2000.

2000 was about only one state with a margin of only about 500 votes. 

The way things are shaping up 45 would probably need to challenge multiple states with much larger margins.

At this point I doubt he'll even demand a recount in Wisconsin because he knows that won’t help him.

Of course if Biden wins Georgia and or Pennsylvania 45 will then have no chance whatsoever. 

In other words I think the chances of this being a repeat of 2000 where the election is decided in the Supreme Court is very slim.

 

Hallelujah for that!

Edited November 5, 2020 by Jingthing

[Tounge Thaied]

4 minutes ago, Jingthing said:

This is  2020.

Not 2000.

2000 was about only one state with a margin of only about 500 votes. 

The way things are shaping up 45 would probably need to challenge multiple states with much larger margins.

At this point I doubt he'll even demand a recount in Wisconsin because he knows that won’t help him.

Of course if Biden wins Georgia and or Pennsylvania 45 will then have no chance whatsoever. 

In other words I think the chances of this being a repeat of 2000 where the election is decided in the Supreme Court is very slim.

 

Hallelujah for that!

If you (meaning anyyone) were paying attention to the run up to this election... most people would agree this was going to be a shenanigans %^&^ show from all sides on election day. Why would you not promote the only best credible accounting and judgement of the voting process? The Supreme court is the Supreme decider in the American system... it what they've got. Doing it any other way will never be accepted by either side of this.

[cmarshall]

32 minutes ago, Jingthing said:

This is  2020.

Not 2000.

2000 was about only one state with a margin of only about 500 votes. 

The way things are shaping up 45 would probably need to challenge multiple states with much larger margins.

At this point I doubt he'll even demand a recount in Wisconsin because he knows that won’t help him.

Of course if Biden wins Georgia and or Pennsylvania 45 will then have no chance whatsoever. 

In other words I think the chances of this being a repeat of 2000 where the election is decided in the Supreme Court is very slim.

 

Hallelujah for that!

 

I think you underestimate the creativity of the 4,000 lawyers that Trump has attacking the election results.   Since Justices Roberts, Kavanaugh, and Barrett are on the Supreme Court today, because they were part of the successful judicial coup that was Bush v. Gore in 2000, it strains credulity to imagine that they would scruple to hand the election to Trump given the chance.  

 

But it could play out this way:  They tie up the count in the courts until Dec. 8, the deadline for reporting the winning electoral slate to Congress.  Then the Republican legislatures can pass a law picking the (Republican) electors themselves under the claim that to fail to do so would disenfranchise the entire state.  But the Dem governor sends in the slate of electors who actually won the vote.  So now Congress has two competing slates, the Senate and the House each vote which to accept.  The Senate will be either majority Republican or tied at 50-50.  If Republican, the Senate accepts the Republican slate.  If 50-50 does Pence get a tie-breaker vote?  Damned if anyone knows given the poor drafting of the Electoral Count Act of 1888.  But there is a high risk that the House and the Senate will not agree on which electors to accept, despite that the law is clear that they must accept the governor's.  If that all results in neither candidate getting to 270, the the House elects the president with one vote per state and Trump wins.

 

If you think the Republicans would disdain to display such contempt for the voters, you haven't been paying attention.   

[Jingthing]

21 minutes ago, cmarshall said:

 

I think you underestimate the creativity of the 4,000 lawyers that Trump has attacking the election results.   Since Justices Roberts, Kavanaugh, and Barrett are on the Supreme Court today, because they were part of the successful judicial coup that was Bush v. Gore in 2000, it strains credulity to imagine that they would scruple to hand the election to Trump given the chance.  

 

But it could play out this way:  They tie up the count in the courts until Dec. 8, the deadline for reporting the winning electoral slate to Congress.  Then the Republican legislatures can pass a law picking the (Republican) electors themselves under the claim that to fail to do so would disenfranchise the entire state.  But the Dem governor sends in the slate of electors who actually won the vote.  So now Congress has two competing slates, the Senate and the House each vote which to accept.  The Senate will be either majority Republican or tied at 50-50.  If Republican, the Senate accepts the Republican slate.  If 50-50 does Pence get a tie-breaker vote?  Damned if anyone knows given the poor drafting of the Electoral Count Act of 1888.  But there is a high risk that the House and the Senate will not agree on which electors to accept, despite that the law is clear that they must accept the governor's.  If that all results in neither candidate getting to 270, the the House elects the president with one vote per state and Trump wins.

 

If you think the Republicans would disdain to display such contempt for the voters, you haven't been paying attention.   

If they do that when Biden by then will have a 5 million vote lead with the most votes for any president in American history they will be inciting civil war. Of course popular vote doesn't count but it does convey the will of the people and adds to the legitimacy of the winner if he has it.

In other words I get what you're saying but I don't think it will happen. 

I don't think even this Supreme Court will be his poodle on this because they would destroy their legitimacy if they did. 

As far as republican legislatures I agree that's worrying but I think its more likely that the republican leadership tells him to take a hike game over.

Edited November 5, 2020 by Jingthing

[ballpoint]

4 minutes ago, Jingthing said:

I don't think even this Supreme Court will be his poodle on this because they would destroy their legitimacy if they did. 

I agree with you there, and, though wishing for a clear result, in a way I would like to see Trump take it to the Supreme Court, only to have it thrown out.  Imagine the tantrum if his "own" people sided with the law rather than his corrupt ways.  The visuals of him being firmly led from the White House, and taken to a padded cell with a severely sprained Twitter thumb, would be the most watched viewing in history.  Bring it on I say.

[Neeranam]

It would be funny if Biden won by just the Electoral vote and no the popular vote. What would the Bidenets say than lol

[cmarshall]

7 minutes ago, Jingthing said:

If they do that when Biden by then will have a 5 million vote lead with the most votes for a any president in American history they will be inciting civil war. Of course popular vote doesn't count but it does convey the will of the people and adds to the legitimacy of the winner if he has it.

In other words I get what you're saying but I don't think it will happen. 

I don't think even this Supreme Court will be his poodle on this because they would destroy their legitimacy if they did. 

As far as republican legislatures I agree that's worrying but I think its more likely that the republican leadership tells him to take a hike game over.

 

It looks like you are one of the ones not paying enough attention.  Were the Republicans chagrined when they impeached Bill Clinton on a pretext?  Did they worry about their legitimacy when the Supreme Court stole the election for Bush by stopping the FL recount, part of the election mechanics solely under control of the state of Florida?  How about when the Senate for the first time in history refused to advise or consent to a Supreme Court appointment by the President?  If Trump did not feel his legitimacy endangered by a 3 million vote deficit in 2016 is that mysterious boundary of illegitimacy going to be breached at 5 million?  Or 10 million?  How about when the Republican Senate refused even to consider removing Trump despite that his actions as president have amounted to a laundry list of violations of the Constitution?  How much did legitimacy figure into that action as opposed to, say, rank self-interest?

 

So, it seems whimsical in the extreme to expect the Republicans from Trump on down to care in the slightest about the wishes of the voters. 

 

The Republicans have been strategizing since the Powell Memo in 1972 to get control of the Supreme Court because of its power to overturn laws passed by the democratically-elected Congress.  It was Koch money in part that funded the Federalist Society founded by Antonin Scalia whose members include Gorsuch, Kavanaugh, Barrett, and Roberts and whose goal has been to fill the federal judiciary with extreme right-wing judges up to and including the SC.  Now that they have exactly the right people in place to achieve yet another judicial coup, how much hesitation do you expect?

[cmarshall]

15 minutes ago, Neeranam said:

It would be funny if Biden won by just the Electoral vote and no the popular vote. What would the Bidenets say than lol

 

Have you ever wondered why that never happens to a Democratic candidate and only Republicans?  Think it might possibly be because the voters overwhelmingly support Democratic policies like taxing the rich, ending the foreign wars, Medicare for All, etc. while the peculiar structure of the Electoral College favors the Republicans.  That's not surprising since the purpose of the Electoral College was to give excessive power in the selection of the president to the slave states.  

[Neeranam]

2 minutes ago, cmarshall said:

 

Have you ever wondered why that never happens to a Democratic candidate and only Republicans?  Think it might possibly be because the voters overwhelmingly support Democratic policies like taxing the rich, ending the foreign wars, Medicare for All, etc. while the peculiar structure of the Electoral College favors the Republicans.  That's not surprising since the purpose of the Electoral College was to give excessive power in the selection of the president to the slave states.  

Didn't Bush win this way?

 

 

[Jingthing]

6 minutes ago, cmarshall said:

 

It looks like you are one of the ones not paying enough attention.  Were the Republicans chagrined when they impeached Bill Clinton on a pretext?  Did they worry about their legitimacy when the Supreme Court stole the election for Bush by stopping the FL recount, part of the election mechanics solely under control of the state of Florida?  How about when the Senate for the first time in history refused to advise or consent to a Supreme Court appointment by the President?  If Trump did not feel his legitimacy endangered by a 3 million vote deficit in 2016 is that mysterious boundary of illegitimacy going to be breached at 5 million?  Or 10 million?  How about when the Republican Senate refused even to consider removing Trump despite that his actions as president have amounted to a laundry list of violations of the Constitution?  How much did legitimacy figure into that action as opposed to, say, rank self-interest?

 

So, it seems whimsical in the extreme to expect the Republicans from Trump on down to care in the slightest about the wishes of the voters. 

 

The Republicans have been strategizing since the Powell Memo in 1972 to get control of the Supreme Court because of its power to overturn laws passed by the democratically-elected Congress.  It was Koch money in part that funded the Federalist Society founded by Antonin Scalia whose members include Gorsuch, Kavanaugh, Barrett, and Roberts and whose goal has been to fill the federal judiciary with extreme right-wing judges up to and including the SC.  Now that they have exactly the right people in place to achieve yet another judicial coup, how much hesitation do you expect?

I'm not saying your pessimistic forecast isn't possible but I don’t think its likely. 

Of course it will help a lot if Biden manages to win Georgia and or Pennsylvania. 

Also its still possible for 45 to win legitimately by counting the votes.

[cmarshall]

2 minutes ago, Neeranam said:

Didn't Bush win this way?

 

 

 

Yes, Bush lost the popular vote, but won in the Electoral College after the Supreme Court illegally stopped the recount in Florida?  But Bush was not a Democrat.  It seems you have confused yourself.

[cmarshall]

2 minutes ago, Jingthing said:

I'm not saying your pessimistic forecast isn't possible but I don’t think its likely. 

Of course it will help a lot if Biden manages to win Georgia and or Pennsylvania. 

Also its still possible for 45 to win legitimately by counting the votes.

 

I think some version of this is definitely going to happen.  Let's put a pin in this discussion for review in one month.

[Andy from Kent]

2 hours ago, Katipo said:

It's not an 'if', it's a 'when'... at least if Biden wins. Trump will never concede, ever. It's not in his nature. Until the day he dies he will maintain that the election was stolen. That's just the type of person he is.

 

If Trump wins, there may be some challenges, but not to the same extent. Biden at least has enough dignity to concede.

 

I'm not a great fan of either men, but from a global perspective, Biden is the better choice.

 

It's shocking to me that a country as large as the USA ends up with two old men battling it out for the Presidency.

 

All votes cast I think are really going as a vote for the Vice President candidate.

 

I'll bet the video on YouTube of Trump being dragged out of the White House feet first will get a lot of like votes. ????

[Jingthing]

1 minute ago, Andy from Kent said:

 

It's shocking to me that a country as large as the USA ends up with two old men battling it out for the Presidency.

 

All votes cast I think are really going as a vote for the Vice President candidate.

 

I'll bet the video on YouTube of Trump being dragged out of the White House feet first will get a lot of like votes. ????

No. People vote based on the top of the ticket regardless.