If the Election Is Disputed, Don’t Bet on Congress or the Supreme Court to Decide It

With luck the U.S. presidential election results will be decisive on November 8. There will be a clear winner and no election disputes will emerge.

Yet as the polls tighten nationally, in critical swing states there are possibilities of a contested election. Were that to happen, one cannot count on either Congress or the Supreme Court to resolve the matter. It is entirely possible that the political polarization that has divided the United States might set the country up for a post-election battle that might make Florida 2000 and Bush v Gore pale by comparison.

The November 8, elections could fail to be conclusive in many ways. It could be a split in the electoral versus the popular vote winner. Or no one receiving a majority of the electoral vote because of a 269-269 tie. Or maybe a third party candidate wins some electoral votes. Or there is a faithless elector who fails to cast a vote for Trump or Clinton. Or simply there are disputes over the actual popular vote in a specific state or legal questions about voter fraud, intimidation or suppression. Or maybe there is dispute in ballot counting in Florida, Ohio, or another close state. In a highly partisan and closely divided election as we have seen where even the most basic facts about voter fraud or global warming are disputed, a less than conclusive result might portend a contentious post-election legal or political battle to resolve the presidency. This might be the case whether it is Trump or Clinton who is the loser. The stakes for the presidency are so high that one could see either challenging the result.

It is not the specter of violence or tanks in the street on November 9, as fantasized by so many postings in social media, fed by heated pre-election rhetoric. It is not as extreme as Trump saying he might not accept the validity of the election. Instead, there are legitimate reasons why there could be post-election disputes. In many states, automatic recounts are required when the margin of victory is small, such as a half of percent or less. Recounting of ballots, finding errors, or even finding uncounted ballots often adjusts final totals. In the case of Minnesota where I am, back in 2008 Al Franken emerged as the winner for the U.S. Senate race nearly eight months after the election, reversing what appeared to be a 215 vote win for his opponent by eking out a 225 vote victory. Franken’s victory was a result of a legitimate legal battle that culminated in a Minnesota Supreme Court decision in his favor. Close races in some states might trigger court fights.

Sixteen years ago in Florida questions about election procedures and ascertaining voter intent in three Florida counties led Al Gore initially legally to protest and then contest the election results, correctly demanding a recount because the Bush margin of victory was so close. Eventually, the US Supreme Court had to resolve the dispute, ending the election in favor of Bush by halting the recount. To this day its decision Bush v Gore remains one of the most contentious decisions ever, with Democrats decrying that it was a partisan court that stole the election from Gore who had won the national popular vote. But this year with a Supreme Court short one Justice and divided 4-4 with an equal number of Democratic and Republican Justices, if a case were to reach to resolve the presidential election it might be unable to do so.

Consider also what might happen if neither Clinton nor Trump gets a majority of the electoral vote. The Constitution and the federal law dictate that the Congress that is elected this November will resolve the issue in January. The House is tasked the responsibility to select the president, the Senate picks the vice-president. Assume Republicans retain control of the House, the Democrats take the Senate. We could wind up with President Trump and Vice-President Kaine.

Even worse, the law that dictates how Congress counts the electoral votes — The Electoral Count Act of 1887-passed a decade after the disputed 1876 presidential election, might well be unconstitutional because it forces the House and Senate to act in ways which makes each chamber the ultimate judge of their own internal procedural rules. Or a divided Congress might just refuse to cooperate. Yet without a Supreme Court able to resolve any disagreements here, who knows what could happen and the fight to select the next president could languish for months in Congress or in the lower courts.

One hopes that none of these scenarios emerge, but they are distinct possibilities if the election does not produce a clear winner. Given how partisanly divided this country is, one can worry that it could cripple the very institutions that are supposed to resolve these kind of disputes.


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