Responding to a Contested Election, Step by Step

(Bloomberg Opinion) -- (This is the first of two articles.)

After Nov. 3 — Election Day — there is a chance of constitutional chaos. It could take the form of acute uncertainty, not only about who won the election but also about the process by which that question will be settled.

We might have a perfect storm: close contests in key states, issues with mail-in voting, allegations of voter suppression and fraud, and an incumbent president who is unwilling to accept a loss (and who is already paving the way toward contesting the results as “rigged”).

To see the problem, it is essential to understand that Nov. 3 is only the first of three defining days. The second is Dec. 14, when members of the Electoral College cast their votes. The third is Jan. 6, 2021, when Congress meets in joint session to declare the winner.

What happens on Nov. 3 is almost always enough to decide the presidential election. That isn’t because victory goes to the candidate with the most votes nationally, but because the popular vote, within the states, settles the outcome in the Electoral College.

In nearly every state, the candidate who receives the most votes statewide is entitled to the vote of all of the state’s electors.

Suppose, for example, that President Donald Trump receives 47.3% of the vote in Ohio, and that former Vice President Joe Biden receives 47.2% of the vote there. All of Ohio’s 18 electoral votes would be allocated to Trump.

But what if we don’t know on Nov. 3, or even a month later, who won Ohio? Or Wisconsin, Michigan, Pennsylvania and Florida? What if it takes a long time to count the votes, and what if the results are disputed?

In the 2000 election, of course, pitting George W. Bush against Al Gore, something like that happened. Uncertainty about the all-important outcome in Florida was settled only by a decision of the U.S. Supreme Court, which effectively halted the recount there, just six days before the meeting of the Electoral College. The court’s decision turned on a constitutional issue not relevant to the general discussion here.

What is relevant is an obscure law — the Electoral Count Act of 1887 — that was specifically designed to sort out post-election chaos.

The ECA, as it is called, was a direct response to a genuine constitutional crisis in 1876, when Congress could not agree whether Samuel J. Tilden or Rutherford B. Hayes had won the presidential election. It created a bipartisan Electoral Commission to settle the matter.

The commission was widely regarded as a disaster. As one member of Congress put it, “the political conscience is a flexible and elastic rule of action that readily yields to the slightest pressure of party exigencies.” The ECA was seen as a long-term solution that would prevail over partisanship.

If we read the act carefully, we can make progress toward handling any chaos that might arise in 2020. In this column, I’m emphasizing what is clear about the ECA. Its aim, above all, was to minimize the role of Congress and the president – and to give principal authority to the states.

In the face of conflict and confusion, Section 2 of the ECA makes state law decisive:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determinations made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive . . .

That means a lot depends on a state making a “final determination,” in accordance with its own law, by Dec. 8, 2020, six days before the meeting on Dec. 14. (Dec. 8 or before is known as “the safe harbor.”)

If a state is able to do that, Congress cannot alter its determination. Game, set, match.

Crucially, Section 2 is a kind of pledge, reflecting a congressional commitment to respect the authority of the states – and not to entangle the federal government in their processes. (There are a few exceptions, but they’re narrowly defined.)

Section 4 of the ECA adds this:

[N]o electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified [and] . . . received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.

This provision is important, because it should greatly limit the role of political shenanigans.

To reject a vote from an elector, both houses of Congress have to agree. In 2020, with the Senate controlled by Republicans, and the House controlled by Democrats, electoral votes are highly unlikely to be rejected, if partisanship is decisive.

In addition, Congress is allowed to reject such votes only on the ground that they have not been “regularly given.” The term refers to a narrow category, including (for example) votes for people who could not constitutionally become president, votes on the wrong day, or votes that resulted from corruption, such as taking a bribe. (Note that we are speaking here of the votes of electors, not of ordinary citizens, which means that mail-in voting could not be challenged here as not “regularly given.”) 

But what if Congress receives two sets of returns – say, one from a Republican legislature and one from a Democratic governor, and both purporting to be the returns from a state? The ECA’s Section 4 tries to sort that out.

In short: If one of the two sets of returns can claim the Dec. 8 safe harbor, it prevails. If neither can claim the safe harbor, the House and the Senate get to decide — if they can agree. If they cannot, then the certification by the governor of the state is authoritative.

As noted above, I have been describing what’s clear in the law, not what’s unresolved or ambiguous. We can easily imagine scenarios – including long delays in vote-counting and allegations of fraud – that could force members of Congress and, potentially, the Supreme Court, to resolve the open questions.

Unfortunately, they’re tricky, and I will explore them in my next column.

The constitutional issue was whether the method of vote-counting in Florida, which was undertaken without clear standards, violated the due process and equal-protection clauses.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

©2020 Bloomberg L.P.