This post is part one of a three-part series on the legal process for selecting a president and the possibility of a contested 2020 election. Anderson will be discussing these articles and answering questions from Lawfare patrons at a Lawfare Live online event this Friday, Oct. 23, at 12:00pm EDT. For more information on how to join, click here.
With Election Day only two weeks away, public concerns over the possibility of a contested election have shown no signs of abating. In recent weeks, President Trump and Vice President Mike Pence have repeatedly refused to commit to a peaceful transition of power in the event that Democratic nominee Joe Biden wins the presidency, causing worry that the Republican Party may use delays in the counting of ballots or reliance on mail-in ballots as pretext for disputing election results. Meanwhile, some right-wing activists have reportedly told donors that it is, in fact, the Democrats who are planning to delay finalizing the election results, all in a far-fetched effort to install Speaker of the House Nancy Pelosi in the White House.
A great deal has been written about the various scenarios that could result from a contested 2020 election. Fewer efforts, however, have been made to place these scenarios in the broader context of the United States’s presidential selection process. This process has not just one but several dispute resolution processes and fail-safes built into it, any one of which may prove decisive if presented with the right set of facts. But as countless scholars have illustrated over the years, this system is also possessed of numerous gaps, ambiguities and unanswered constitutional questions, all of which may lead to good faith disagreement as to their intended outcomes—and create opportunities for less principled actors to obstruct or manipulate the system if doing so serves their political interests.
This three-part Lawfare series aims to examine the various parts of the system in order to provide a better roadmap as to where a contested election might lead. This first post focuses on the earliest stage of the presidential election process, wherein states use elections (and potentially other methods) to appoint presidential electors, who in turn cast the actual votes for both president and vice president. The next post will examine how these votes are counted by the incoming Congress, whose own ranks will be shaped by the 2020 election and any disputes it may produce. Finally, the last post will consider what the House and Senate will do if the electoral votes fail to decide who becomes president—and what happens if the rest of the process remains deadlocked when Trump’s term as president reaches its constitutionally mandated end at noon on Jan. 20, 2021.
None of these accounts are necessarily comprehensive, as there are more complexities and contingencies in the system than can be done justice in a single set of pieces of this length. But examining the system as a whole will at least help readers orient themselves during the tumultuous weeks that may—but hopefully never will—come after the last ballots are cast on Nov. 3.
Elections and State Legislatures
The process for selecting a new president begins with the states—and, since 1961, the District of Columbia—which each appoint a number of individuals to serve as presidential electors. These electors collectively constitute the Electoral College, and they are the individuals who cast the actual ballots that determine who becomes the next president.
Article II of the Constitution establishes that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” presidential electors equal in number to the total number of senators and representatives that the state has in Congress. According to the Supreme Court, this “convey[s] the broadest power of determination” to state legislatures for determining how such electors are allocated—to the point that, as the court made brutally clear in Bush v. Gore, “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college[.]” In early American elections, several state legislatures chose to directly appoint their allotment of presidential electors on the basis of this authority, while others held different types of elections that—ranging from assigning each elector to a particular electoral district within the state, to awarding all electors following a state-wide vote.
For over a century, all 50 state legislatures have used this authority to allocate their states’ presidential electors on the basis of popular elections. While the exact process varies, each political party that fields a presidential ticket—consisting of candidates for both president and vice president—within a state nominates a slate of potential electors in advance of Election Day. The state then appoints its electors from these slates depending on the results of the election. Forty-eight states appoint all of their allotted electors from the slate put forward by the party whose presidential ticket wins a plurality of votes state-wide. Two states—Maine and Nebraska—assign one elector to the party whose ticket is the plurality winner in each of the state’s congressional districts, while awarding the two remaining electors to the party whose ticket wins a plurality statewide.
Since ratification of the 23rd Amendment in 1961, the District of Columbia has also appointed a number of presidential electors equal to what the district would be entitled if it were a state, but no more than the least populous state—a formula that currently amounts to three electors. Congress determines how these electoral votes should be allocated and has similarly legislated that they be awarded to the party of the plurality winner in the city as a whole.
Nonetheless, Article II’s broad assignment of authority to state legislatures has occasionally been cited as a basis for assigning presidential electors on less democratic grounds. In 2000, Florida’s state legislature explored appointing electors if the state’s contested election results were not resolved in time for the state’s electoral votes to be counted, but never chose to do so. The following year, the state of North Carolina adopted provisions that pre-authorized its General Assembly—and, if that body failed, its governor—to appoint the state’s allotment of presidential electors if election results were disputed past a certain point. And even more recently, Barton Gellman reported in the Atlantic that some of Trump’s supporters in Republican-controlled state legislatures are exploring whether this authority could be used to assign presidential electors to Trump if the 2020 election results are disputed or take an extended period to count in their states, whether by accident or by design.
The success of such schemes, however, hinges on the assumption that state legislatures will have uninhibited authority to appoint presidential electors, even after a scheduled election has taken place. And the case for that is far from clear. As the Supreme Court held in Bush v. Gore, “[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental” and becomes subject to other constitutional protections, including equal protection and due process. These constitutional protections may substantially limit the ability of state legislatures to elevate their own preferences over those of constituents, particularly if there is no compelling public interest to justify such a move. While federal courts are generally hesitant to interfere with state election proceedings, they have done so in the past to enforce constitutional and related federal law protections. In some cases, for example, courts have suggested that they may direct state officials to take certain actions and even voided the results of tainted state elections. Any such litigation, of course, is likely to ultimately end with the Supreme Court, where the confirmation of Amy Coney Barrett—and her decision as to whether she is obligated to recuse herself from 2020 election matters—may prove instrumental in determining the outcome.
Attempts at appointing electors could also run afoul of both substantive and procedural requirements provided by a state’s constitution—including the possibility of a gubernatorial veto, which is provided for by all 50 state constitutions. This in turn could result in similar litigation in state courts, which may again end in the Supreme Court if it is seen as implicating constitutional or other federal legal protections. Notably, there is a line of thinking that Article II’s express reference to state legislatures provides those legislatures with heightened authority over the allocation of presidential electors, even compared to other state institutions. Chief Justice William Rehnquist articulated this view in his concurrence in Bush v. Gore, and four members of the current Supreme Court—Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas—recently voted in support of two (unsuccessful) petitions for stays by the Pennsylvania Republican Party that relied in substantial part on such arguments. But even if the justices were to lend extra weight to the legislature’s preferences, it would still be a reach to say that Article II allows state legislatures to operate outside the strictures of the state constitutions that created those legislatures to begin with.
Regardless, the state and federal courts are not the only or even the primary venues that an effort to appoint state electors would have to survive. Congress itself claims the central constitutional role in determining which electoral votes are counted and when. And it has used this authority to enact federal laws that provide incentives for the states themselves to resolve disputes before they reach the federal level. These laws may pose an additional hurdle for state legislatures that seek to supplant state election results.
State Laws and Safe Harbors
As provided by Article II of the Constitution, presidential elections are conducted in line with procedures set forth in state law, albeit within limits prescribed by other constitutional protections. This is why much of the litigation leading up to Election Day takes place in state courts, with occasional detours to federal court where disputes touch on federal legal protections. But Congress still plays a substantial role in structuring the process. Most notably, it’s Congress that “determine[s] the Time of chusing the Electors, and the Day on which they shall give their Votes[,]” allowing it to establish the timeframe in which electors must be selected. For years, the legislature has set this date for the “Tuesday next after the first Monday in November” of every fourth year (which, this year, falls on Nov. 3). In the past, some states—most notably Maine—held their statewide elections in advance of this date and simply did not appoint their electors until this date. Today, however, every state holds its elections on the day that has come to be known as Election Day.
That said, under 3 U.S.C. § 2, if a state “h[o]ld[s] an election for the purpose of choosing electors” but “fail[s] to make a choice on the day prescribed” then “electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” Some have argued that this provision should be read as permitting state legislatures to use their Article II authority to appoint electors in cases where a presidential election has been conducted but is not conclusive. (North Carolina, for example, incorporates such a reading of 3 U.S.C. § 2 into provisions of its state laws that allow for the appointment of presidential electors.) But a sounder reading of the 1845 statute that installed this provision suggests that Congress aimed to provide states with some flexibility in both conducting and tabulating the results of their presidential elections in the event of complications or interruptions. In other words, 3 U.S.C. § 2 was not intended to allow state legislatures to strip elections of any legal effect simply because they are not immediately conclusive.
Another provision of federal law—originally enacted a few decades later as part of the 1887 Electoral Count Act—reinforces this understanding by establishing what the Supreme Court has described as a “safe harbor” for resolving election disputes. Under this provision, 3 U.S.C. § 5, if a state has enacted state law provisions installing a process that produces a “final determination of any controversy or contest” regarding the appointment of its electors prior to Election Day, then the determination reached by that process “shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution[.]” The only requirement is that the final determination be reached at least six days prior to the meeting of electors (which, in 2020, means by Dec. 8).
This arrangement inherently disfavors post-election efforts by state legislatures to appoint electors or otherwise change the terms on which election results are decided. As any such legislative effort would not have been in place on Election Day, the resulting slate of electors could not qualify for the safe harbor and would not be treated as “conclusive.” The one possible exception is North Carolina, whose existing state laws authorize its General Assembly to appoint electors if disputes are still outstanding by the date the safe harbor window closes. If the General Assembly does not act by the day that electors are required to vote, North Carolina’s governor may step in and appoint electors. Both are obligated to appoint electors based on “their best judgment of the will of the electorate.”
Of course, it’s not clear what exactly 3 U.S.C. § 5 means when it says that determinations reached pursuant to state procedures that qualify for the safe harbor will be treated as “conclusive.” In part, the answer hinges on how one reads the notoriously convoluted Electoral Count Act—a topic that will be covered in a subsequent post in this series. For present purposes, however, it’s enough to note that the inability to qualify for the safe harbor at 3 U.S.C. § 5 may prove fatal to certain state legislatures’ efforts to appoint electors at least as far as the Electoral Count Act is concerned. This is especially true if other state officials, such as the governor or secretary of state, certify a separate slate of electors by the safe harbor deadline on the basis of the procedures that were in place prior to Election Day.
That said, the deadline installed by 3 U.S.C. § 5 can also be a double-edged sword. In Bush v. Gore, the Supreme Court—relying on an earlier ruling by the Florida Supreme Court—interpreted Florida law as signaling an intent on the part of the state legislature to qualify for the safe harbor deadline. This in turn led the Supreme Court to halt the ongoing Florida recount that had been directed by state courts, on the grounds that the recount could not be pursued in a manner consistent with equal protection requirements without missing the safe harbor period. This sort of hard deadline could be particularly problematic in 2020, when various factors may make state election results difficult to finalize for an extended period, especially if contested. For this reason, state institutions may wish to be particularly careful about suggesting that their legislature’s intent is to fit with 3 U.S.C. § 5’s safe harbor, even if an election dispute is ongoing. After all, even if not “conclusive” under the Electoral Count Act, votes cast outside this window may still be counted by Congress.
Regardless, the broader effect of the safe harbor at 3 U.S.C. § 5 is to provide an incentive for states to develop their own dispute resolution procedures in advance of any elections. As my co-authors and I described in another recent Lawfare piece, states have responded to this invitation in a diverse set of ways. Several have enacted election dispute procedures that are either explicitly or implicitly designed to take advantage of this safe harbor. Others have avoided adopting or have even rescinded such procedures and instead effectively defer to Congress’s own procedures for resolving such disputes. (Almost all states, however, retain provisions for possible recounts.) The procedures and standards adopted by the different states are varied and often inconsistent. But collectively, they provide the first line of defense in preventing an election dispute from becoming a potential constitutional crisis.
The Electoral College Votes
Whenever a state’s electors are determined, federal law directs each state’s executive to certify the results to the archivist of the United States and provide six copies of the same certification to the electors themselves before they meet to cast their votes. Congress sets the date on which this happens and has assigned it to the first Monday after the second Wednesday in December—which, this year, falls on Dec. 14. On that day, the presidential electors from each state convene in their state capitals to vote by ballot as prescribed by the 12th Amendment. If there are vacancies among the electors, state laws govern how they should be filled. Each elector then casts a vote for both president and vice president, at least one of whom must be from a different state than the elector. (This would prevent presidential and vice presidential candidates who are from the same state from both receiving the full slate of electoral votes from their home state. Such a scenario isn’t a concern in 2020, though it has been in prior years.)
In the vast majority of cases, the fact that the electors are selected from the political party of the winning presidential ticket is enough to assure that they will vote for the intended candidates. That said, most states also have laws in place that require electors to pledge to vote for the candidate of the party they are representing, while several also threaten to punish or even replace electors who fail to do so—all of which are measures that the Supreme Court has upheld as constitutional. Nonetheless, some “faithless electors” may still be able and willing to cast votes for candidates other than the ones voted on by their respective states, introducing an element of unpredictability into the results.
But what if an election dispute is still ongoing as of the date that the electors are supposed to vote, despite the incentives provided by the safe harbor provision? When this occurred in Hawaii in 1960, two different slates of electors ended up casting votes. One was later certified as correct by the state’s governor when the state courts finished adjudicating the dispute, and Congress unanimously elected to count that slate’s votes—even as the presiding official, Vice President Richard Nixon, disclaimed any intent at establishing a precedent. To avoid such an outcome in 2020, some members of Congress have proposed moving the date that electors vote (as well as the end of the safe harbor period) further back in the calendar so as to provide states with as much time as possible to resolve any election disputes on their own terms. Thus far, however, these efforts have shown no signs of moving forward.
Once the electors finish voting, the 12th Amendment directs them to certify the results in writing and transmit the results to the president of the U.S. Senate—meaning the incumbent vice president—to be counted. Federal law also requires that the electors certify and send additional copies to several other officials: two copies to their state’s secretary of state; two copies to the archivist of the United States and one copy to the judge of the district in which the electors have convened. This provides a redundant record that relevant officials may call upon if they do not receive the results from a given state through regular channels by the fourth Wednesday in December (which, this year, is Dec. 23). Some argue that this supplemental deadline also signals an intent by Congress to accept electoral votes even if cast after the date set by Congress. Others, however, contend that Congress may discount the votes of electors who vote on a day other than the day appointed, and the historical record shows that it has considered doing so on at least one occasion. Whatever the correct answer, the risk of Congress discounting votes may well encourage states to follow 1960 Hawaii’s model and have multiple slates of electors hold votes on the required date if a dispute remains ongoing.
At this point, the states’ role in the presidential election has more or less come to an end. Once the electors cast their votes, the process shifts to Congress, which plays the lead role in counting—and, where necessary, deciding on the validity of—the electoral votes it has received. That will be the focus of the next post in this series.