What Happens After November 3?

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KEY POINTS FROM THIS ARTICLE

— The most critical moments in the 2020 election will come after Election Day, Nov. 3

— Millions of mail ballots induced by the coronavirus will delay final results in some states for several weeks after the election.

— Congress is most likely to certify a Biden victory, but Trump (or Pelosi) might still win.

The big questions after the vote

Political fanatics — including me — are now focused on the presidential contest between Donald Trump and Joe Biden. But the more interesting events may not actually happen on Election Day, Nov. 3.

I now am convinced that former Vice President Joe Biden will win the popular vote by a significant margin and have a decisive Electoral College majority. Although the campaign will be the focus of most commentary, I think the Biden victory is very likely, as now evident in consistent polls as well as political science models. In the Crystal Ball of Aug. 4, renowned analyst Alan Abramowitz forecast a Biden victory within a range of 319 to 361 electoral votes.

Those assessments aside, and even assuming that Biden wins, that vote must actually be cast, counted, and certified. For even a leading Biden, the days after Nov. 3 will not be the customary period of analysis, celebration, and calm preparation of a new administration. President Trump is nothing if not a believer in his own strength and inevitable success. He will make every effort, fair or foul, to remain in the White House. Unconstrained by commitment to established institutions, he will employ the extensive powers remaining in his hands for at least 78 days after the balloting, ally with his compliant Attorney General William Barr, Republican officeholders, legislators, and judges, perhaps even mobilize military forces at his command. Before there is a presidential inauguration, we may witness many scenarios unprecedented in American politics — novel, intriguing, and very scary.

The first Trump effort was already launched last month, when Trump casually tweeted a suggestion that the election be delayed, to overcome the problems created by the coronavirus pandemic. Because the power to set the elections is explicitly given to Congress alone by the Constitution and has been set on the same date since 1845, this frivolous thought was quickly rejected by both parties and their congressional leaders.

But Trump’s tweet was more than idle musing. He tied it to a larger objective — opposition to voting by mail, rapidly spreading as an alternative to in-person voting, the traditional practice. COVID-19 has made voters and election workers fearful of contagion by the killer of more than 175,000 Americans. Trump claimed (as did Barr), contrary to empirical evidence, that voting by mail would lead to massive election fraud and, probably worse in his eyes, to an extensive mobilization of Democratic votes. The Post Office itself has become a political flashpoint.

The president has probably lost the political argument. Already, over three-fourths of the voting public has relatively good access to alternative means of casting their ballots, including mail, absentee, and early voting. More restrictive laws exist largely in noncompetitive states, particularly in the South, where Trump will likely win whatever the formal arrangements. Moreover, there is some preliminary but ironic evidence that his criticism is hurting his own cause, lowering Republicans’ use of mail ballots more than Democrats’.

But the president’s objectives do serve a larger purpose, to frame these methods as illegitimate props to a “rigged election.” Whatever the outcome, he will be able to avoid the damage to his self-image of a “loser” and to maintain his caustic critique of American institutions.

Trump is right, moreover, that mail balloting will complicate and lengthen the voting process. In-person voting is normally simple. An individual voter is known to the poll workers, verification requires a quick signature, casting a vote requires only pushing a few buttons, and the tally is automatically recorded and counted. Voting by mail involves many impersonal exchanges, each subject to innocent human and mechanical errors: in most states, each ballot must be requested, sent, received, completed, returned to the election officials, received, counted, and finally included in the overall tally.

As an electorate, we will also now experience a quite different way of knowing the results. Television coverage, computerized data analysis, polls, and instant electronic communication have led us to expect the basic facts the very night of the balloting. By the time we go to bed (unless the year is 2000), the networks and the pundits have confidently identified the next president; when awakened we are prepared to cheer or at least acknowledge our designated leader. That very well may not be the case this year. In all likelihood, half or perhaps even more than half of all votes will be cast either early or by mail, according to the Brookings Institution’s Elaine Kamarck. A considerable number of these votes will not be counted on Election Night. For the November election, 20 states allow mail ballots to be received after Election Day (if postmarked by that day). Obviously they could not be counted until after the polls have closed, probably resulting in delayed calls of the winners.

Tens of millions of mailed ballots will take days to count, even weeks in California. To reach an Electoral College majority, the roll of the states will not take minutes of broadcasters’ verdicts, but potentially weeks of accountants’ ledger readings. We are less likely to repeat Jimmy Carter’s concession of his national loss at 7 p.m. Pacific time in 1980, and more likely to endure the plodding recount of chads and ballots through December of 2000.

The count of the ballots in the critical larger states can easily extend for a month. The process will be still more excruciating if those state elections are close. Then the ballots need not only to be counted, but often recounted. We already have seen the difficulties of reaching a final count in this year’s primaries in such states as New York. The problems, where they exist, will likely worsen when a larger presidential vote is involved, and a single statewide decision of critical electoral votes is at stake. It is also true that some of this year’s elections were handled well, such as Kentucky’s Democratic nomination, and that many states, both Republican and Democratic, are making efforts to improve their procedures.

Whatever the locale, we can be sure that there will be challenges by the apparent losers, and that the count will change during the court cases that will follow. The partisan impact will be different because of countervailing problems in the confused administration of elections in the COVID-19 era. On the one hand, Democratic turnout in in-person voting will be lowered because fewer polling stations will be open, particularly affecting big cities with larger minority populations. On the other hand, Democrats seem more likely to use mail ballots (precisely Trump’s fear and effect). It is quite possible that a Republican lead on election night after in-person voting will be reversed after mail ballots are tabulated in a “blue shift” — as happened, for example, in the Arizona Senate election in 2018, when a small GOP lead on Election Night evaporated as the vote was finalized in the days after the election.

To add to the possible confusion, these counts and recounts will be determined by state laws, not a national standard, so there will be inconsistent procedures. The application of those laws will be subject to interventions by governors and state legislatures, often in opposed partisan control, as in Michigan, Pennsylvania, and Wisconsin, the decisive states in Trump’s 2016 victory. Federal courts will also be invoked, now bulwarked by Trump’s selection of 200 conservatives.

Appeals to the U.S. Supreme Court will surely follow, but that is no guarantee of a definitive ruling. When the court did end the close election in 2000, its ruling in Bush v. Gore was not only poorly reasoned but was also specifically declared to be no precedent for the future. Since then, the court’s position has generally been to refuse to rule on state election procedures, leaving the nation without guidance and its judgment, even if made, is uncertain, given the close division between ideological blocs, the fragile health of Justice Ruth Bader Ginsburg, and the clever but vacillating stance of Chief Justice John Roberts.

But the calendar will keep turning, as Constitutional deadlines — specified in the 12th and 20th amendments — and procedures established in 1877 in the Electoral Count Act come into effect.

The critical date is Dec. 14, when the chosen electors in each state will gather in their separate state capitals to cast their votes. But which electors — those nominated by the Republicans to endorse Trump, or those selected by the Democrats to name Biden? That’s precisely the issue to be resolved in the contested states. It’s possible that the legislature, if controlled by the opposite party, will try to change the rules (as Florida Republicans did try in 2000). The decision will usually be made by the state governors, whose reports are already designated by statute as determining. Significantly, Democrats now head many of the key swing states, specifically Michigan, Wisconsin, Pennsylvania, and North Carolina. All of them voted for Trump in 2016, all are likely to be certified by their governors as voting for Biden if the tallies are murky. Their combined 61 electoral votes, added to those of the states that chose Hilary Clinton in 2016, would give Biden a total of 293, a national electoral majority. Countervailing efforts by Republican governors in other battleground states — Texas, Florida, Arizona, Ohio, Georgia — would do no more than hold these states in a shrunken, losing Trump coalition.

Once the electors decide, they send the results by registered mail to the president of the U.S. Senate, who will still be Vice President Mike Pence. Then, the two houses of Congress meet on Jan. 6, precisely at 1 p.m. Pence would then open the mailed state results in alphabetical order (beginning, the statute insists, with “A”), read the results, which would then be recorded by senators and representatives designated as tellers. If there are conflicting reports, he would rule on which to include. Where there are conflicting state reports, the procedures set in 1877 declare that the report of the state governor is determining. And the roll of the states would proceed, the total results would be announced, and the new president would be chosen by a majority of all electoral votes. That’s the way it’s supposed to happen.

But, remember, this will be 2021. The Congress that will witness the count of the vote will be the new Congress, elected in November. It will surely have a Democratic majority in the House, and odds right now are that Democrats will also net at least three new seats in the Senate. Another opposition seat (Georgia) may also be vacant, at least for a time, awaiting the official results of an all-but-certain Georgia special election runoff on Jan. 5, 2021 (and potentially a runoff in the state’s other, regular Senate election as well). In these circumstances, at least at first, the Democrats could have a minimum voting edge of 50 to 49. With control of both houses, Democrats would decide how to count the state electoral votes, which competing results to accept, or even to disregard a state’s vote altogether, and whether to overrule any unfavorable rulings of presiding Vice President Pence (who will not have any vote, even in a tie). They will also be free of worry about the Supreme Court, which has generally refused to intervene in cases of congressional decisions on elections.

With their likely majorities in both House and Senate, Democrats would confirm Biden’s election as president, and Kamala Harris as vice president. But that’s not the only possibility. Let’s say that Trump wins, but under controversial and close circumstances, perhaps related to actions he took as president to try to help his own election odds. In this scenario, Republicans might hold the Senate, while Democrats would retain the House.

The last scenario is the most unsettling but perhaps most intriguing. Assuming party loyalties hold, Congress could not reach a decision amicably, with the Senate voting for Trump electors, the House for Biden electors. Republicans might have one controversial way to get their way — if one or more “faithless electors” had the foresight or unbounded egotism to vote for a third candidate. These electors have pledged that they would vote for their party’s choice, Trump or Biden, but they might decide — or heed instructions — to choose someone else, as did seven electors in 2016 whose picks ranged from Colin Powell to Faith Spotted Eagle, a native American. The Supreme Court has since ruled that states may punish or replace such “faithless electors,” but disloyalty is still possible in a third of the states. As the Supreme Court explained in the case of Chiafalo v. Washington (2020), 32 states do require electors to formally pledge support of their party’s candidates, but only 15 provide enforcement measures, such as fines, replacement or criminal punishment for any who violate their oaths. Electors may still act faithlessly, it would seem, if they are willing to accept some loss of reputation or a small fine or a brief jail term.

With the right numerical split, neither Trump nor Biden would have a majority of the Electoral College, and the decision would pass to the House alone, with each state having a single vote, determined by its full delegation. A bare majority of state delegations (26 of 50), aided by Republican gerrymandering by state legislatures, now have a Republican majority, including five states with only a single representative. To counter this force in the presidential count held in the new House, Democrats would need to win or neutralize at least three states. There are reasonable targets — such as Pennsylvania, Michigan, and Florida. Assuming no other changes, the overall balance would become 25 delegations for each party — with neither having the majority of states needed to choose the president.

Failing in this maneuver, the Senate would select the new vice president from the top two contestants, who would then take office as acting president. So, if 51 senators agreed, Mike Pence would be president until the House could make a decision — perhaps immediately in a notorious political deal, perhaps after midterm elections in 2022, perhaps never in four years or never in a peaceable country.

Or perhaps no decision at all could be made in Congress before the precisely fixed time for the new presidential term — Jan. 20, at noon. In that case, the office would be vacant for only a second, and the new president would be the person designated in accord with the 20th Amendment — the Speaker of the House. Nancy Pelosi would become the acting president. Trump’s manipulations would bring his most hated foe to the office he had fought to retain for his personal glory amid what Lawrence Douglas, Professor of Law at Amherst, properly warns, “a complete electoral meltdown and the unrest and violence it could unleash.”

The ironies looming in a bitter contested 2020 election would be exceeded only by our sadness for the loss of the greatest American contribution to democratic practice, the peaceful transfer of power. Will we ever again believe in Jefferson’s invocation of a free and temperate politics? “We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”

Gerald Pomper is retired as Board of Governors Professor of Political Science (Emeritus) at Rutgers University and its Eagleton Institute of Politics. He is the author or editor of 21 books on American politics; the most recent is The New York Times on Critical U.S. Elections.