Resolving Disputes Arising from the 2020 Presidential Election

Abstract

There will likely be challenges to the validity of votes in this Presidential election which will give rise to numerous legal issues under state and federal law (both statutory and constitutional). This memorandum discusses various scenarios. The fact pattern to bear in mind is Democratic control of the process of counting the popular vote for electors and a Republican legislature (as is the case in Wisconsin, Michigan, and Pennsylvania). I first look at issues arising from the popular election of electors (such as receipt of late ballots after November 3 and challenges to signatures). State officials may or may not determine that these ballots are valid and may or may not permit certification of the selection of electors that goes beyond the December 8 date which guarantees congressional acceptance of an electoral slate (the “safe harbor” provision; 3 U.S.C. sec. 5). In any event, a federal court might decide that any such determination or certification by state officials violates Article II of the Constitution. That Article provides that the state legislature shall determine the manner of selecting electors, which rules out anything other than a reasonable interpretation of state election law by state officials. I also explain what happens if there is a tie in the electoral college – including the possibility of a tie in the House vote (by state delegations) and the likelihood that the Senate will be unable to select a Vice President as Acting President if the House fails to pick a President. I then consider what happens if a state legislature advances its own slate (without the Governor’s participation), resulting in the possibility of two slates being presented to Congress on January 6 (after the new Congress has been seated on January 3). An 1887 federal statute (3 U.S.C. sec. 15) purports to determine how Congress can choose between competing slates but that law has two major uncertainties – it does not clearly establish what role the President of the Senate (who will still be Vice President Pence) can play and how a dispute between a Democratic House and Republican Senate can be resolved. One provision of the statute suggests that, in the event of an unresolved House/Senate dispute, the slate offered by the Governor (a Democrat is the likely fact pattern) shall prevail. There is a real possibility that no President or Vice President would emerge from this legal and political chaos by January 20, when the President is supposed to take office. That would result in application of the Presidential Succession Act, which would likely lead to Speaker Pelosi becoming Acting President. At various points, the U.S. Supreme Court may be asked to resolve one or more of these legal issues (as well as some not mentioned in this abstract) and they will probably do so, despite a reluctance to become involved in “political questions”.