The nation’s 133-year-old law for picking a president has a provision that has never been needed to settle a disputed election, since it deals with a situation that would only happen after a cascade of seemingly improbable events.
Then again, this is 2020, a year that feels cursed with historic worsts.
And election law experts warn that Congress would be wise to clarify the provision before the country potentially faces this worst-case scenario: A full-fledged constitutional crisis if there is no clear Electoral College winner on Inauguration Day on Jan. 20.
“If you’re asking the question what should Congress do to prepare for November, that would be on the top of the list,” said Edward Foley, a constitutional law professor and director of Ohio State University’s election law program, who has written on the provision and hosted a recent online expert roundtable discussion on it.
The situation calls more for a dose of procedural preparation than panic. The odds of that worst-case scenario seem incredibly low.
Yet this year has already seen the third presidential impeachment trial in United States history, the worst pandemic in more than a century, and deep partisan divisions about the country’s future. President Donald Trump has more than foreshadowed possible disputes to the legitimacy of the November election results because of a heavy shift to mail-in ballots during the health crisis.
It’s a swirl of ingredients that some election law experts fear could — as unlikely as it may seem — make Section 15 of the Electoral Count Act of 1887 relevant again.
That provision — a paragraph a political scientist called “almost unintelligible” in the year after it was passed — spells out how Congress should count Electoral College votes.
The problems start if a state submits two different election results and the House and Senate clash on which results should be tallied. More later on all the dominoes that would have to fall for that to happen in 2020.
But if that does happen, there are conflicting interpretations of what the law requires Congress to do, Foley said. It’s an ambiguity that he calls the Achilles’ heel of the Electoral College system and Congress’ role in counting votes.
In one reading backed by a legal analysis in 2004, Congress would count the electoral slate backed by the governor of the state. In the other reading, backed by a Congressional Research Service report from 2001, the state’s electoral votes would not be counted at all. The unused provision remains untested.
“It’s not crazy,” Foley said, to imagine two different electoral results from a state that is critical to the outcome of the presidential election, or a group of states that are critical to the outcome. And he says the law lacks full clarity and “does not address the situation.”
Picture the aftermath of the 2000 presidential election between George W. Bush and Al Gore, except it’s Congress that has to decide which of two competing slates of electoral votes from Florida to count.
It might have happened: The Republican-dominated Florida Legislature signaled during the uncertainty of a recount and legal fights that it probably would take the unusual step of appointing a slate of electors pledged to Bush. The court rulings might have led to Gore overtaking Bush in a recount and prompted a competing slate of Gore electors. But the Supreme Court’s Bush v. Gore ruling and the subsequent Gore concession made it moot.
When Michael Stern spun out the dueling Florida scenarios in 2016, the former lawyer in the House counsel’s office and for House committees concluded that the Electoral Count Act had no method to resolve which slate Congress would count and “the end result of this scenario would also appear to be a standoff with no clear path to resolution.”
Having not addressed it yet, Congress, amid a deepening economic fallout from the pandemic and ongoing health risks associated with conducting congressional business, may not have an appetite for fixing it now, either.
Derek Muller, a law professor at the University of Iowa who focuses on election law, said it would be nice for Congress to clarify the provision. That’s particularly true because neither party would know ahead of time whether the clarification would help or hurt them in the upcoming election.
On the other hand, there are a lot of election issues Congress could clarify, Muller said. And only one state has ever submitted more than one slate of presidential electors since the Electoral Count Act was passed. That was Hawaii in the 1960 election, and that state’s votes didn't determine the outcome, anyway.
An election “happens every four years and you haven’t had a major problem in over 130 years,” Muller said. “It’s tough for Congress to get too bent out of shape about it.”
An ad hoc group of 25 legal experts, spearheaded by the law school at the University of California, Irvine, included concerns about the Section 15 ambiguities in an April report about keeping the public’s confidence in the November presidential election.
The group, which included Foley, assumed Congress would fail to clarify the Electoral Count Act ahead of time. So instead, it recommended that election law scholars establish a strong consensus on the law ahead of the election to “help reduce the extent to which such congressional contestation could spin out of control.”
In what situation might a state send Congress two different slates of electors, and when might that even matter? Or spin things out of control?
Foley points to a swing state such as Michigan as a ready example that seems more likely because of Trump’s reelection effort and the pandemic.
It takes a few steps to get there.
Imagine the vote in Michigan comes in on Election Day with Trump ahead, but there are still a lot of uncounted absentee ballots that either came in that day, were postmarked that day but still beat the deadline, or there was a change because of COVID-19 to allow them to arrive in the days following Election Day.
There could be a historic number of mail-in ballots because of the pandemic. More states are expanding vote-by-mail opportunities for those who want to avoid crowded polling locations on Election Day, and lawsuits across the country are addressing the timing of counting absentee ballots.
Let’s say most of those absentee ballots are from urban centers such as Detroit with heavy Democratic contingents. Trump could start claiming victory in Michigan based on his lead in the results from polling places, and raise questions about the legitimacy of the absentee ballots and the potential for fraud.
Trump already raised unsubstantiated claims of mail-in ballot fraud during the 2018 Florida governor election, and tweeted Wednesday that “large scale Mail-In Ballots” would be “a free for all on cheating, forgery and the theft of Ballots. Whoever cheated the most would win.”
Then let’s say, in the Michigan example, that the counting of absentee ballots after Election Day puts Democratic candidate Joe Biden ahead.
A similar shift happened in the Senate race in 2018 in Arizona — where mail-in ballots, which can take longer to tally than machine votes, are valid if they are dropped off up until the polls close on Election Day. Republican Martha McSally was ahead after Election Day, but Democrat Kyrsten Sinema pulled ahead in the next days of counting ballots.
In the Michigan scenario, all of that could lead to a contested election if the results are close enough.
The University of California, Irvine report states that “because many more ballots are likely to be cast by mail, and because mailed ballots are much more prone to disputation, basic math indicates that there is now an even greater chance that vote tallies will be contested.”
Michigan’s Democratic secretary of state and governor would assign electors based on the popular vote that Biden won. But the Republican-led Legislature, if it grabs on to arguments that the popular vote was fraudulent or otherwise problematic, might claim it has the authority to assign its own slate of electors.
While no legislature has ever tried to seize that authority after an election takes place, Foley points out that the Florida Legislature tossed around the idea in the 2000 election aftermath.
In the Michigan example then, both sets of electors meet and send the results for Congress to tally. That’s when the muddled language of Section 15 might kick in.
The Senate and House would then have to split over which of the two counts to accept. This could happen, in theory, if Republicans retain control of the Senate in the election and Democrats do the same in the House.
After all of that, there’s still one more precondition that would make any of it matter. The electoral votes from Michigan would have to make the difference in the outcome of the presidential race. Or, it could be a combination of Michigan and other states where this could happen, such as Pennsylvania.
At that point, the law’s language is unclear about whether Congress would tally the Michigan governor’s electoral slate, or whether Congress would not add Michigan to the tally at all.
The law was created in the years after a different type of national upheaval, one with racial conflict. During the post-Civil War Reconstruction period, several Southern states had conflicting and often competing state governmental authorities with unresolved and unclear lines of jurisdiction, according to a CRS report from 2001.
“Several states forwarded to Congress in 1876 different and competing slates of electors, which threw the presidential election into confusion and partisan turmoil,” the CRS report states.
Past is prologue?
That era seems to be in the distant past.
The only time a state has sent two different electoral results since then doesn’t provide any guidance. The Hawaii governor after the 1960 election first certified the appointment of electors for Republican Richard Nixon. Then, after a recount that determined Democrat John F. Kennedy had won the Hawaii vote, the governor certified Kennedy as the winner.
But those votes didn’t matter in the outcome and so were counted without controversy, a CRS report from 2016 notes. When it came time for Congress to count Hawaii’s electoral votes, Nixon, acting as vice president and therefore president of the Senate and presiding officer over the counting of electoral votes, suggested “without the intent of establishing a precedent” that the Kennedy certification be accepted so as “not to delay the further count of electoral votes.”
Still, Foley contends that Congress could settle a nonpartisan issue: “Let’s just be responsible, and let’s just clear up these ambiguities and have tiebreakers, some sort of tiebreaker, for these situations.”
Even that might not be enough to avoid an electoral count showdown in a close presidential election. In the 131-page law review article from 2004, “The Conscientious Congressman’s Guide to the Electoral Count Act of 1887,” law professor Stephen A. Siegel concluded that partisanship will, uh, find a way.
The more fundamental problem with the electoral count system is that Congress already knows the results of each state so any structure can be manipulated by partisans, he wrote.
“No matter what substantive criteria and processes Congress adopts for judging the propriety of each state’s electoral vote, in a close presidential election, when each state’s vote is known beforehand, partisans on every side will usually be able to game the system to figure out grounds to reach the result they want,” Siegel wrote.