Will we even know by Inauguration Day who won the election?
Political commentators are warning Americans not to expect to learn on election night who won the 2020 presidential election because it will take days or even weeks to count the expected surge in mail-in ballots.
Actually, we will be lucky if we know who won by January 20, 2021, which is Inauguration Day. That is one scary takeaway from electoral “war games” conducted in June by a bipartisan group of political operatives, former government officials and experts organized by the Transition Integrity Project. The simulated election crisis scenarios make the 2000 Florida recount in Bush v. Gore look like a political lovefest.
In one scenario, titled “Ambiguous Result,” the election turned on the results in North Carolina, Michigan and Florida. After North Carolina went to Biden and Florida to Trump, a rogue saboteur destroyed ballots in Michigan that would have given Biden a win in that state and the presidency. Both sides claimed victory and Michigan ended up sending rival slates of Trump and Biden electors to vote in the Electoral College. The Electoral College process broke down over which slate was entitled to vote. By noon on January 20, 2021, when the next president was supposed to be sworn in, “both sides were still claiming victory, leading to the problem of two claims to Commander-in-Chief power (including access to the nuclear codes).”
This may sound like a Hollywood political thriller, but the possibility of having two claimants to the Oval Office on January 20 is real. That’s because the Electoral College timeline is incredibly tight (not that there won’t be challenges to the deadlines). Election Day is November 3. If a state finishes its count, any recounts and judicial review by December 8, then Congress must accept that state’s electoral vote as conclusive. Six days later, on December 14, the electors chosen in the popular vote meet in their states to cast their votes for president. The states report their electoral vote counts to Congress, which counts them at a joint session on January 6, 2021 and declares the result. At least, that’s how it’s supposed to work.
Then there is the plausible, all-hell-breaks-loose scenario even without a saboteur. First, two or three swing states, or even more, with close races can’t finish their counts because of the time needed to tally mail-in ballots, and resolve disputes, by December 14, when the states’ electors meet. Remember that in Bush v. Gore, the single-state Florida recount was still uncompleted nearly five weeks after the election when the Supreme Court stopped it, which gave the presidency to George W. Bush.
Next, these states send rival slates of electors to vote at the Electoral College meeting in those states, which happened in the elections of 1872 and 1876, and the Republican-controlled Senate and Democratic-controlled House unsurprisingly fail to agree on which slate’s votes to recognize (which didn’t happen in 1872 and 1876).
Finally, the Supreme Court refuses to choose between the rival slates of electors because that is the exclusive responsibility of Congress under the Constitution. If the electoral process seizes up this way, no winner will likely be declared by Inauguration Day.
Arguably Trump and Pence’s terms are over since they haven’t been re-elected. Under the Presidential Succession Act, House Speaker Nancy Pelosi (D. Calif.), as third in line, could become the acting president until the election is finally decided. Even that pathway to temporary stability is uncertain and subject to court challenge. And, honestly, is Donald Trump, who has already declared that Biden can’t win without election fraud, going to clear his belongings out of the Oval Office for, of all people, Nancy Pelosi?
In another war game scenario, Biden decisively won the popular vote but narrowly lost in the Electoral College, the third time this has happened to Democrats in the last 20 years. His frustrated campaign encouraged California, Oregon and Washington to secede from the United States unless congressional Republicans implement reforms to ensure majority rule.
If this year’s election turns out to be an embarrassing, destabilizing and disruptive fiasco, it won’t require a succession threat. The furious American public will rise up and demand an end to the Electoral College so that the presidency can be decided by the popular vote, with ample time to count it, and we will never again have to go through an electoral nightmare.
Gregory J. Wallance, a writer in New York City, was a federal prosecutor during the Carter and Reagan administrations. He is the author of the historical novel, “Two Men Before the Storm: Arba Crane’s Recollection of Dred Scott and the Supreme Court Case That Started The Civil War.” Follow him on Twitter @gregorywallance.