America has to count on more than prayer in the case of close election

America has to count on more than prayer in the case of close election
© Greg Nash

Many of us remember the 2000 election and the time of doubt between November and the concession of Al Gore after his Supreme Court defeat in December. None of us were alive for the even more controversial 1876 election. The results were unresolved for months until Congress declared Rutherford Hayes the winner only days before the inauguration.

We all hope this year ends up nothing like either of those precedents. But there is an increasing chance that the results of the 2020 election could remain uncertain for weeks because of delays in counting mailed ballots in the midst of the coronavirus. What can our leaders in the government do now to avoid a bad repeat of those calamitous precedents?

One answer is to say the prayer of election administrators that the results are a landslide. If the early returns are so lopsided that uncounted ballots will not make a difference in the end, the networks may be able to call an unofficial winner that night. However, realism forces us to recognize that the race could be close enough with the volume of uncounted ballots to prevent a typical Election Day call, with the race going into overtime. At that point the prayer for a landslide fails. What happens then?

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In this regard, it is worth comparing the 1884 election and 1916 election, on the one hand, with the 1876 election and 2000 election, on the other. No one thinks of 1884 and 1916 as years when the election for president was disputed, and that is the critical point. In both years, however, the results remained unsettled for two weeks, yet the losing side ultimately accepted the final count to be the official choice of the people.

In each of those earlier election overtimes, both campaigns fielded teams of lawyers to inspect the ballots in battleground states. The 1884 election turned on New York, and the 1916 election turned on California. Moreover, Republicans were concerned in both times that fraud might deprive their candidate of a rightful victory. But after subjecting the returns to intense scrutiny, Republicans acknowledged that the Democratic candidate had won enough valid votes to prevail as the winner for president.

If this year is like 1884 and 1916, we should all be grateful. It would mean that the defeated party accepts the results as the verdict of the people, giving the winner the mantle of legitimacy. By contrast, 1876 and 2000 were problematic because the losing candidate conceded only that the decision maker, for instance the Electoral Commission or the Supreme Court, rendered a ruling and not that it spoke for the people.

How can we improve the odds that any overtime this year ends like 1884 and 1916 instead of 1876 and 2000? It starts with a commitment to state procedures that certify vote counts, several weeks after Election Day, as genuinely reflecting the decision by the eligible voters who participate. These procedures permit candidates to challenge questionable ballots. Candidates should use these state procedures with whatever evidence they have. No candidate should condemn an entire category of ballots, which is permissible under state laws, as inherently unreliable.

If there are concerns about details of ballot review procedures in certain states, the campaigns should raise them now. The American Law Institute looked at this topic and, with the input of recount lawyers from the major parties, developed a bipartisan set of principles that I worked on to guide reform. For any revision of these state laws over the next few months, the principles provide an important source. The campaigns should otherwise accept existing state laws and be prepared to honor the results.

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If it is too much of a pipedream to expect the candidates for president this year to credit any adverse tallies when certified, then Congress had better start preparing for. Contestation over results certified by the states could extend overtime into January, when Congress will meet in joint session to receive the votes from the states. There are two ways in which the rules in Congress for this are deficient and worth redressing in advance.

The first issue is the calendar established by Congress. It requires states to hold their Electoral College meetings in December and to complete all the ballot review procedures six days earlier if they want the “safe harbor” promise by Congress to abide by such certified results. These deadlines proved to be challenging for Florida in 2000, and might be even harder this year with counting delays in the midst of the coronavirus. Congress should give states until early January to resolve controversies.

The second issue is the statute governing the joint session of Congress. Its convoluted language seems to require that, if Congress receives two conflicting submissions from a state, the results signed by the governor prevail unless both chambers of Congress agree otherwise. However, the statute is sufficiently ambiguous that Congress should clarify, in modern language, that interpretation of the tiebreaker by the governor is indeed correct. If Congress makes these two critical changes before November, then that would be much better than simply relying on prayer.

Edward Foley is a constitutional law professor with Ohio State University.