iAs midnight approached on November 8, 2016, and certainly as dawn broke on the East Coast, it had become apparent that Hillary Clinton would win the national popular vote but that Donald Trump would win the Electoral College vote to become the 45th President of the United States. But when dawn breaks on November 4, 2020, will we know who will be sworn in as president on January 20, 2021? And what impacts would any delay or ambiguity in the results of the election have on our economy and our democracy during a time of heightened partisan divisions and an ongoing global pandemic?
— Information in Appendices 2 and 3 last updated on October 14, 2020. —
This essay endeavors to explore these weighty matters. Both the mechanics of varying state election laws and the greatly increased use of mail-in voting make it quite likely there will be no clear winner on November 4, and perhaps for many days thereafter. Although our country has proven to be remarkably resilient during election controversies determining past transfers of power, our current polarized environment may well lead to more turbulence and potentially widespread civil unrest this year. For the sake of our democracy, our economy and our need to meet the challenge of the pandemic, we nonetheless hope that our fellow citizens will know for certain by the time they gather for a meal of Thanksgiving who will swear to “preserve, protect and defend the Constitution of the United States” on January 20.
Investors and C-suite executives here and abroad have much about which to be concerned. The potential impacts of a result of a period of prolonged uncertainty and unprecedented turmoil in the US economy following next month’s election cannot be good for financial markets or business planning. As if to drive the point home with absolute clarity, the middle-of-the-night revelation earlier this month that President Trump and First Lady Melania Trump had tested positive for the coronavirus disease 2019 (COVID-19) rattled Wall Street and other financial centers across the globe. The previous day, the New York Times had reported that
[i]nvestors have spent recent months pushing the stock market to record highs, seemingly undeterred by the worst pandemic in a century and the enormous toll it has taken on the United States economy.
But now, politics is giving them agita. In the last few weeks, the market’s results have reflected the uncertainty weighing on investors’ minds as they prepare for what could be a politically turbulent stretch — including a Senate fight to fill the former Supreme Court seat of Justice and the November presidential election, which could result in a constitutional crisis.”
And that was before the news broke about the Trumps’ diagnosis. Early on October 2, as the New York Times reported,
[t]he S&P 500 was down about 1 percent. The news rocked other markets too. The benchmark Stoxx Europe 600 ended slightly higher after a turbulent day. In Japan, where the news broke late in the trading day, stocks finished nearly 1 percent lower after erasing early gains. Oil futures also slid, with Brent crude and West Texas intermediate, the two main benchmarks, down more than 3 percent. Prices for other commodities fell, too.”
All that after the President and First Lady had tested positive.
Let us roll the tape forward.
Election 2020: Uncertainties
In the modern era, especially as television augmented radio as the means by which the American public got news, we as a nation would gather in our living rooms on “election night” to follow the returns as they were reported by the major network anchors. Over time, we came to rely upon television networks with their elaborate ways of “projecting” who would win House and Senate races, as well as the presidency itself. In significant part, what made that possible (beyond modern technology) was the practice of citizens casting their votes in person on Election Day (by law, the Tuesday after the first Monday in November). Their votes would be tabulated throughout the day and then released in batches following the closing of the polls that evening. However, those days are now behind us, not least because of the COVID-19 pandemic.
Four major variables will continue to be at work to create uncertainty this year. First is the effect of the COVID-19 pandemic on voting, which will continue to affect everything from the mechanics of in-person voting, to the processing of an unprecedented volume of votes cast by mail, to the demographics of who votes by each method. The 2020 presidential election will likely see the highest percentage of early, in-person voting and the greatest use of the mail (and collection boxes) for citizens to cast their ballots in our history. However, it will not be the first time one of the major parties has encouraged citizens to vote early. In fact, the election of 1864 was the first to provide a widespread alternative to in-person voting, as President Abraham Lincoln sought to ensure that Union soldiers would be able to participate in the election. As he put it, “we can not have free government without elections; and if the rebellion could force us to forego, or postpone a national election it might fairly claim to have already conquered and ruined us.” Perhaps not surprisingly, the opposition Democratic party at the time warned of rampant fraud and “a scheme” by Lincoln’s Republicans “to gain some great advantage to their party,” as one state senator put it before the Wisconsin legislature voted on party lines to become the first state to authorize absentee voting.
Second, a feature of the US federalist system is now on display, namely, that the 50 states and the District of Columbia are effectively administering 51 different elections, with their own rules and procedures for distributing ballots and counting votes in the upcoming presidential election. Add a slew of lawsuits to this vast web of differing rules, particularly in the contentious “battleground states,” and a full picture of the election law complexity emerges.
Recent polls suggest that a substantially higher number of Democrats than Republicans are likely to vote by mail (if not early in person), whereas a corresponding higher percentage of Republicans are likely to vote in person on November 3. As a result, barring a landslide, election “night” might evolve into election “weeks” by the time the votes are counted, which could be further delayed as the inevitable lawsuits are commenced to challenge the outcome in states across the country, many of which will be premised on the existence of some sort of fraud – notwithstanding the fact that state election officials have conducted elections for decades with only rare instances of fraud ever occurring. Of course, such a scenario would play out in a virtually unprecedented environment of disturbing social media manipulation trends, foreign interference by numerous adversaries and highly targeted misinformation campaigns aimed solely at sowing domestic unrest.
The third factor is the often misunderstood, but vitally important, way in which votes are counted in the Electoral College to determine who will serve as president and vice president. And potentially as significant this year will be the roles assigned to the US House of Representatives and the US Senate if the Electoral College does not decide the election.
Finally, for the first time in our nation’s history, a sitting president has publicly and repeatedly refused to commit to accepting a peaceful transfer of power, which led the US Senate recently to unanimously adopt a resolution reaffirming this core principle of our democracy and Senate Majority Leader Mitch McConnell (R-KY) to tweet: “The winner of the November 3rd election will be inaugurated on January 20th. There will be an orderly transition just as there has been every four years since 1792.” He was not the first to invoke this essential feature of our democracy. When he stood on the West front of the US Capitol on January 20, 1981, as our hostages were being released in Iran and Jimmy and Rosalynn Carter sat behind him, President Ronald Reagan began his inaugural address by saying: “The orderly transfer of authority as called for in the Constitution routinely takes place, as it has for almost two centuries, and few of us stop to think how unique we really are. In the eyes of many in the world, this every-four-year ceremony we accept as normal is nothing less than a miracle.” Notwithstanding this history and deepening concerns in his own party, President Trump again refused to agree to accept the outcome of the November 3 election in the first presidential debate held on September 29. When asked in the vice presidential debate on October 7 whether President Trump would commit to a peaceful transition should he lose the election, Vice President Pence declined to answer the question.
To put what potentially lies ahead in perspective, we offer below a primer on the Electoral College. We then describe how governors, state legislatures and local election officials across the country are responding to the pandemic. We highlight the provisions of current state laws that govern, in particular, when absentee ballots must be mailed, by when they must be received, and the procedures that will govern how and when they will be tabulated. With lawsuits being filed seemingly every day to challenge these decisions, we will not have full clarity on the rules that will apply in states across the country until just before November 3. We assess as well where anticipated litigation could affect the counting and tabulation of votes once the rules finally have been set. (We will be regularly updating the litigation component of this essay, breaking it out into a separate piece for those who want to follow the ongoing battle more closely.) Finally, we walk through the various steps by which the Electoral College will meet to make a decision and what could follow in the US House of Representatives and in the US Senate if the Electoral College has not selected a president and a vice president by January 6, 2021.
As we write now, with the polls still showing a competitive presidential election and the president showing no signs of backing down from his contention that the election is illegitimate, the odds of electoral uncertainty on the morning of November 4 seem to be increasing. However, we can envision scenarios in which the American public would know who would be governing the country in 2021. If Vice President Biden, for example, were to have been declared the winner in Georgia or North Carolina and Florida, he will almost assuredly be declared the winner in the Electoral College. At the same time, if President Trump were to have been declared the winner of Florida, Arizona and a battleground state such as Pennsylvania, there would be virtually no foreseeable path forward for Vice President Biden, particularly because of what wins in these critical states would likely mean for the outcome in other battleground states.
Because we can only hope for such early clarity by early on November 4, we lay out below what could go wrong.
The Electoral College
As prescribed in Article II, Section 1 of the US Constitution, the Electoral College elects the president and the vice president. The Constitution gives each state the power to appoint its electors “in such Manner as the Legislature thereof may direct,” with all states and the District of Columbia currently using some form of popular election. Each state has as many “electors” as it has representatives and senators in the US Congress. With the District of Columbia having three electors, the Electoral College is comprised of 538 members. When voters go to the polls or fill in their mail-in ballots, they might be under the impression that they are casting votes for a particular person for president and for vice president, but in fact they are voting for the slate of electors who have vowed to cast their ballots in the Electoral College for the individuals who make up the Democratic, Republican and any third-party “tickets” on the ballot. For that reason, you cannot vote for the president from one party and the vice president from another. They come as a pair. To prevail, a ticket needs to garner a minimum of 270 votes.
Most states require that all electoral votes go to the ticket that receives a plurality of the votes cast by whatever means. (Maine and Nebraska employ a “district system” in which two at-large electors vote for the slate with the most votes statewide and one elector votes for each congressional district’s highest vote getter.) After state election officials certify the popular vote of each state, the winning slate of electors meets in each state capital and cast two ballots – one for president and one for vice president.
The District of Columbia and 26 states “bind” their electors to vote for their promised candidate, including with oaths and fines. In July, in a little-noticed decision, the US Supreme Court unanimously upheld laws that allow state election officials to remove or punish “faithless” electors. In the modern era, very rarely have electors voted for someone other than for whom they pledged. Faithless electors have never decided a presidency. Given the Supreme Court’s decision, faithless electors are not likely to alter the outcome this year either. That is not the problem on the horizon.
If the Electoral College deadlocks or if neither the Biden-Harris ticket nor the Trump-Pence slate receives a majority of votes (which seems quite remote in the absence of a credible third-party slate), a “contingent election” will be held. At that point, future contestants on Jeopardy! might see “1887 Electoral Count Act” under US Civics for $100. They would know it to be the law, with all its ambiguities, that provided the framework for deciding the 2020 presidential election. That legislation was enacted by a Republican Senate and a Democratic House in the aftermath of the 1876 presidential contest between Rutherford Hayes and Samuel Tilden. Under the Compromise of 1877, Democrats conceded the election of Hayes in return for an end to Reconstruction and the withdrawal of federal troops from the South. The legislation the two parties agreed to requires the electors to be chosen by no more than 41 days after the election. Should a joint session of Congress meet to decide the winner of the election (as further discussed below), the law quite helpfully sets forth where everyone is to sit when they gather on the floor of the House. However, it leaves a raft of questions unanswered, which only adds to the uncertainty about what lies ahead.
The election of the president goes to the House of Representatives and the election of the vice president is decided by the Senate. For an added touch of drama, the election would be decided in the House by the incoming members elected in November, with incoming or re-elected senators joining those completing their terms in the Senate. In the presidential election, each state delegation in the House casts one vote for one of the top three contenders to determine the winner. California, with its 53 members, will get just as many votes as Alaska. Since the first presidential election in 1788, the House has decided the outcome only twice – in 1800 and 1824. In the election of 1800, it took 36 ballots over seven days for Thomas Jefferson to defeat Aaron Burr. In 1824, John Quincy Adams defeated Andrew Jackson, who had received a greater share of the popular vote. It is often said that “three is a charm,” but the 2020 election could demonstrate its inapplicability next year.
But before we speculate about how a contested presidential election might play out in the House, in the next segment we publish, we will discuss the peculiarities of state election laws that could make for election “night” to extend for weeks. In our final segment, we will lay out the most significant dates, and what they might mean as January 20 draws nearer. In the interim, please see the attached Appendix 1 that provides a timeline of things to come.
State Election Law Developments
There are many benefits to the US system of federalism, but the administration of a national election by hundreds of different governments at the state, county and local levels, each with its own election rules, processes and governing boards, might not be one of them. Madisonian debates aside, the reality is that voting looks very different based on where you live in the US and, indeed, often even where you live in your state and city.
As shown in the attached Appendix 2, these very real differences also manifest themselves in how and when votes are tabulated. The policies range from those states that end the counting of votes on Election Day, such as Florida, to those that do not begin counting until Election Day, such as Michigan.
In this contentious moment, such distinctions could be critical. Consider these potential outcomes on Election Day. If Vice President Biden were declared the winner in Florida on election night, as well as in states that count votes early, such as North Carolina and Arizona, and those that use quick-to-tabulate electronic voting in person, such as Georgia, he will almost assuredly be declared the winner. Conversely, if President Trump were to sweep Florida, Arizona, North Carolina and Georgia, along with an early call in a Midwestern state such as Ohio or Pennsylvania, his second term would be virtually reassured. In either scenario, the period of ambiguity would be relatively minimal.
On the other hand, if a scenario unfolds in which President Trump and Vice President Biden split Arizona and Florida, and a state like North Carolina is deemed too close to call, the likelihood for a long and messy period of ambiguity will increase significantly. This is because vote counting will only begin on Election Day in the critical battleground states of Michigan, Pennsylvania, Wisconsin and Minnesota, where officials have already made clear that final results should not be expected on Election Day or perhaps even in the days immediately thereafter. The possibility for unrest in that period of ambiguity would be increased by the reality that in-person voting results, which will likely be significantly over-representative of Trump voters as compared to all voters, may well be released before the totals from the more laborious process of counting votes by mail, a method overwhelmingly favored by Democrats. As such, we can envision a scenario in which President Trump would appear to have a substantial lead in a battleground state after in-person results are announced. This “lead” would then evaporate over a series of highly contentious days as mail-in votes are counted, a time period during which claims of conspiracy, fraud and illegitimacy, along with scorn toward government officials, would surely take hold with many. For context, just look to California in 2018, when Republicans in hard-fought districts seemed to be doing well the day after the election, only to find that all of them had been defeated when mail-in votes had been counted.
Potential Litigation Scenarios
Litigation that already is ongoing will have at least as great an impact on the outcome as the anticipated litigation on and after Election Day. As shown in the attached Appendix 3, courts already are ruling on issues ranging from the number and location of ballot drop boxes, to the end-date for receipt of absentee ballots – and their rulings will shape the electoral outcome indelibly before a single vote is announced.
The scale and scope of election litigation in 2020, like much else with this election, is unprecedented. The national party committees and numerous large and well-funded advocacy organizations have been litigating every nuance of voting, at virtually every level of government, in an effectively perpetual fashion since the 2016 election, particularly in jurisdictions no longer covered by preclearance under the Voting Rights Act after the 2013 Supreme Court decision Shelby v. Holder. At present, lawsuits have been filed in more than 40 states, and more are likely as Election Day gets closer.
The 2018 midterm election was essentially a continuation of the battles of 2016, reaching a fever pitch in states such as Georgia, where Democrat Stacey Abrams flatly declined to concede the election to now Governor Brian Kemp, citing voting improprieties. In a prime example of how election law issues have morphed into major political issues, Abrams actually decided that rather than conceding the election, she would both sue the state based on its administration of the election and start a national voting rights organization.
That organization, Fair Fight Action, has joined with traditional progressive organizations such as the American Civil Liberties Union, and new entrants such as Democracy Docket, on matters ranging from the rights of felons to vote in Florida, to how long ballots can be counted in Pennsylvania, to how long signature issues with mail ballots can be remedied in Arizona. The Democratic coalition has generally focused its proactive efforts on initiating litigation in states on issues expanding the franchise, and thus their electoral prospects, via efforts such as expanding access to absentee voting and drop boxes. In addition, they have sought to extend the time by which votes can be counted, as in Wisconsin.
On the other hand, the Republican National Committee, the Trump campaign and several of their GOP allies have initiated lawsuits in states that have either extended absentee ballot counting, provided additional drop boxes for ballots or provided additional opportunities to correct ballot mistakes. Many such suits are active nationwide. These range from a recent win in Iowa state court for the Trump campaign, where an injunction was secured to invalidate pre-filled mail-in ballots that were sent to 50,000 voters, to a federal suit in Nevada, where it is alleged that a recent decision to expand vote-by-mail and allow ballots to be received up to three days after Election Day violates federal election law.
In one of the most recent decisions potentially affecting the outcome in a battleground state, the US Court of Appeals for the Seventh Circuit stayed a federal district court’s order extending the deadline for Wisconsin election officials to accept absentee ballots. As a result, ballots must be in the hands of election officials by the close of polls on Election Day. The lower court’s order would have required ballots to be accepted if received by November 9. The Seventh Circuit also stayed an order extending the deadline for online and mailed-in voter registration. The date will now be October 14, a week earlier than the original date ordered by the lower court.
The Seventh Circuit previously denied the request for a stay of the lower court’s orders, arguing that the state legislature did not have the authority to represent the state’s interest in the suit. After certification from the Wisconsin Supreme Court, which held that the state legislature did have such authority, the Seventh Circuit granted “the petition for reconsideration” and issued the stays.
As with other recent court decisions, the court weighed whether COVID-19-related disruptions and health risks warranted additional time to both register to vote and mail absentee ballots. The Seventh Circuit, noting the Supreme Court’s negative view toward last-minute election changes, concluded that “it is not possible to describe COVID-19 as a last minute event.” The Seventh Circuit also invoked another election-related Supreme Court decision to reject, as “doubtful,” the district court’s “assum[ption] that the design of adjustments [to election rules] during a pandemic is a judicial task.”
Such battles will continue until, and even on, Election Day, with everything litigated from where polls are located to keeping polls open late due to machine irregularities. Both presidential campaigns have built legal structures capable of addressing or initiating challenges across the country, with the Trump campaign having never really ceased operation since 2016 and the Biden campaign recently announcing a major effort led by a former Attorney General, Solicitor General and White House Counsel. Similarly, the political parties and various advocacy organizations have built up legal teams to previously unforeseen levels, utilizing a torrent of grassroots fundraising from activists concerned about voting irregularities on both sides. All of this point to an ability by both parties to litigate election issues in as many places, for as long as is needed.
The litigation underway now is substantially different in character than the issue at the heart of Bush v. Gore (a case in which the predecessor of our firm, Patton Boggs LLP, was engaged for the Bush campaign, with the support of many other talented private sector lawyers, including one named John G. Roberts, Jr.), which focused narrowly on whether a manual recount of Florida votes would violate constitutional Equal Protection guarantees—valuing one vote more than another. The 2020 election litigation—both pending and prospective—implicates the full spectrum of election conditions, including the closing date for absentee ballots, the number and location of ballot drop boxes, and witness signatures on mailed ballots, all in advance of the foreseeable post-Election Day tabulation and recount challenges more akin to Bush v. Gore. Also substantially different in nature is the significantly expanded scope, size and sophistication of the election litigation efforts at both sides’ disposal. Depending on how such legal power is deployed, we may well long for the relative civility, tranquility and lack of disruption during the early winter months of 2000.
Finally, we think it important to note that one of the premises underlying much of this litigation is that election fraud is likely to be widespread and could tip the balance of the election. However, as our former colleague, Ben Ginsberg (who led President George Bush’s legal team in Bush v. Gore), recently wrote in The Washington Post:
The truth is that after decades of looking for illegal voting, there’s no proof of widespread fraud. At most, there are isolated incidents — by both Democrats and Republicans. Elections are not rigged. Absentee ballots use the same process as mail-in ballots — different states use different labels for the same process.”
He went on to cite this evidence:
The Heritage Foundation Election Fraud Database has compiled every instance of any kind of voter fraud it could find since 1982. It contains 1,296 incidents, a minuscule percentage of the votes cast. A study of results in three states where all voters are mailed actual ballots, a practice at the apex of the president’s outrage, found just 372 possible cases of illegal voting of 14.6 million cast in the 2016 and 2018 general elections — 0.0025 percent.”
Potential Electoral College Outcomes
As we look ahead, we set out some important dates to keep in mind and what events triggered by them might mean for the question that will be on the minds of citizens as they wake up on November 4 and perhaps many more days to follow.
December 8, 2020. A state can be assured that its electors to the Electoral College will be recognized if post-election disputes are resolved within 35 days. State election officials and voters cannot be certain that “faithless electors” will vote as they are supposed to, but at least the Supreme Court’s recent decision supports states compelling electors to vote as directed. For what it is worth to those thinking back to 2000, the Supreme Court halted the Florida recount in Bush v. Gore on day 34. Vice President Gore conceded on day 35. So far, so good – but keep reading.
December 11, 2020. This date is not on the electoral calendar, but it could be quite important for another reason. When the US Congress was unable to fund the government for the fiscal year that began on October 1, it agreed to fund the government at fiscal year 2020 levels through December 11. If the election were to produce an outcome that created an even greater level of animosity and distrust than exists today and as a result Congress was unable to agree to another stopgap spending bill, the government would shut down at midnight on the 11th. This is not likely, but a real possibility.
December 14, 2020. Between December 8 and December 13, Governors or Secretaries of State (depending on state law) are expected to certify the results of the election. However, will they be able to do so and will some, motivated by a desire to see President Trump re-elected, find reasons not to certify Vice President Biden as the winner in states in which he has appeared to prevail? Until recently, mail-in votes in most states were relevant only at the margins. Our history is one of people showing up on Election Day to cast their vote in villages, towns and major metropolitan areas as a source of pride and civic responsibility. However, that was before the COVID-19 pandemic turned upside down many of our core assumptions about everyday life. And this might be nowhere more true than how and when voters cast their votes for the President of the United States and various other offices this year.
We as a nation do not have a common set of rules and procedures for conducting federal elections. As a nation that prizes the Tenth Amendment and a philosophical penchant to look to states as “laboratories of experiment,” we have left it to them to decide how to conduct their elections. As a result, no established set of rules govern who may vote, how they may vote, when they may vote, what they need to establish their right to vote, or when, all is said and done, their vote will be counted – or even if it will matter when a joint session of Congress meets on January 6, 2021. Some states, such as Oregon, have long ago switched to voting by mail. Other states, driven by the COVID-19 pandemic, are only now looking at how they might get ballots to voters and to set rules for when and whether their votes will be counted (e.g., received or postmarked by November 3). As noted above, these varying rules will be particularly important this year. To take but three examples, in Michigan, Pennsylvania and Wisconsin – three states that are likely to be rather significant in the Electoral College – officials will not start processing mail-in ballots until Election Day, unless the rules are changed before then. There is no way under the sun that will rise on November 4 that they will have processed anything close to the majority of votes cast other than in person the day before. And once they have completed their work, perhaps even before, we are assuming that the candidate likely to lose the vote will be in court challenging the results.
If no candidate has secured 270 votes when the Electoral College meets, either because state results are still being litigated or for any other reason, such as the two principal candidates each having 269 votes, the decision is left to the House of Representatives on January 6. This is not exactly what a tired and divided nation might want to endure as the end of the year approaches, but we would be entering into three weeks of additional uncertainty.
January 3, 2021. The 117th Congress will convene, with the swearing in of the House members and senators elected on November 3, to join those senators completing their unexpired terms. As a result of a special election in Georgia, we will not yet know who will fill one of the Georgia Senate seats (since the expected runoff will be held on January 5). If Democrat Mark Kelly wins the Arizona special election, he might have already been sworn into office in late November or early December.
January 6, 2021. As a result of the adoption of the Twentieth Amendment, the new Congress, rather than the outgoing Congress, will meet to count the Electoral College votes. As set forth in the US Constitution, “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” Donald J. Trump will still be president and Mike Pence will still be vice president when the newly elected Congress convenes in a joint session at 1 p.m. Eastern Time on January 6, with Vice President Pence sitting in the chair.
Under the Constitution, the House must choose a president “immediately.” The founders required an immediate choice so that there would be no time for deals to be struck. But what if no one is selected on the first ballot? As one observer recalled what unfolded in 1801,
[t]he scene was now ludicrous. Many had sent home for night caps and pillows, and wrapped in shawls and great-coats, lay about the floor of the committee rooms or sat sleeping in their seats. At one, two, and half-past two, the tellers roused the members from their slumbers, and took the same ballot as before.”
Imagine the scene today via C-Span.
When the counting begins, members of Congress may object to individual electoral votes or to state returns as a whole. An objection must be declared in writing and signed by at least one representative and one senator. In the case of an objection, the Joint Session recesses and each chamber considers the objection separately in a session that may not last for more than two hours, with each member speaking for no more than five minutes. After each house votes on whether or not to accept the objection, the Joint Session reconvenes and both chambers announce their decisions. If they agree to the objection, the votes in question are not counted. If either chamber does not agree with the objection, the votes are counted. Although objections were recorded in 1969 and 2005, the House and Senate rejected the objections and the votes in question were counted. Might the third time be different?
Assuming that current majorities continue, there would be more states on January 6 with a majority of Republican members and, thus, Donald Trump almost assuredly would be re-elected. But what if Democrats win enough votes on November 3 to enjoy a slight majority, say 26-24? To get to 26, Democrats would need to retain currently competitive seats in Iowa and Minnesota, and would need to win competitive seats in four states from a pool that includes Alaska, Florida, Michigan, Montana, North Carolina and Texas.
But what if neither party had a majority, such as 25-25 (or 24-24 with two state delegations having equal numbers of Democrats and Republicans), and Vice President Pence were to declare that votes cast for Democrats that would shift the balance should not be counted owing to alleged electoral fraud that is still being litigated in the courts? That would appear to give President Trump a win, but, in fact, the Democratic House would have the authority to avoid that possibility.
House Democrats, out of concern for this possibility or otherwise (such as ongoing litigation challenging the election results for one or more Republican House members), could refuse to seat one or more Republicans and, thus, deny their state delegations a majority on January 6. Under Article 1, Section 5 of the Constitution, the House has the authority to “judge” a contested election. It did so as recently as 2018, when the House refused to seat the Republican winner in the Ninth District of North Carolina after a Republican operative was found to have committed fraud in an effort to swing the outcome of the race. House Democrats could vote not to seat a Republican candidate claiming victory even if state election officials had certified the candidate as the winner. In 1995, for example, House Republicans refused to initially seat Representative Jane Harman (D-CA), even after she had been certified by the state to have won her race by 812 votes.
Not to be forgotten, pursuant to the Twelfth Amendment, the Senate would choose the vice president if the Electoral College outcome has not been resolved by this time. (The Senate has only chosen the vice president once – in 1837). When the Senate convenes (on a day not specified in the Twelfth Amendment but presumably well before January 20), that vote is to be tabulated by the Senate, not by state. A minimum of 67 senators must be present to establish a quorum. They are to choose between the two top vote getters in the Electoral College, with the winner being the one that gets a majority of the votes. But what if the November elections lead to an equally divided chamber, with 50 Republicans, 48 Democrats, and the two Independents who regularly caucus with the Democrats (Senators Bernie Sanders and Angus King). At that point, Vice President Pence would still be serving as President of the Senate and, thus, would potentially need to break the tie, choosing either himself or Senator Kamala Harris. What if enough senators of either party refused to be present and, thus, denied the establishment of a quorum, denying either Senator Harris or Vice President Pence a win even if they enjoyed a majority of the votes actually cast by voters, whether in the popular vote or the Electoral College?
Would you want to own shares in the stock market on January 6 and the days to follow? Would you want to read headlines about the US becoming a “banana republic”? Would you be desperate for some sort of resolution the country could respect?
January 20, 2021. Pursuant to the Twentieth Amendment to the US Constitution, which came into effect in 1933, the beginning (and ending) of the terms of the president and vice president were moved from March 4 to January 20 every four years. The terms of members of Congress also were moved up, to begin on January 3, every two years. Since our elected representatives no longer needed to travel from the farthest flung areas of the country by horseback, it made sense to move up the convening of the Congress and the swearing in of a president and vice president to roughly three months after the election rather than in the spring. Until now, no one had ever seriously considered the prospect of revelers on New Year’s Eve not having a sense of who would take the oath of office three weeks later. However, that possibility is now quite real. Owing to ongoing litigation and a deadlock in the House and the Senate, the country would be facing the prospect of neither major party candidate being sworn in at noon Eastern Time on the 20th.
So, here we potentially are, two weeks after the House and the Senate have failed in their most basic duties to choose a president and vice president in the absence of a determinative outcome in the Electoral College. How might this play out, with potentially significant implications for the stock market, let alone the fabric of our democracy?
As noted above, the term of the new president and vice president begin with their inauguration at noon Eastern Time on January 20. Not just implicit in that but explicit under the Twentieth Amendment is this: the term of the current president and vice president comes to an end at noon. And what if at the appointed hour of noon there is no answer to the most basic question: who is to be sworn in as president and vice president? That is when the Presidential Succession Act of 1947 (perhaps the Daily Double under US Civics for $80) would come into play. It provides in relevant part:
[i]f, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.”
Since she almost assuredly would have been elected Speaker of the House on January 3, Representative Nancy Pelosi would become acting president. She has accomplished much in life, but the thought of being the first female acting president cannot possibly be a title to which she would aspire on January 20, 2021.
We cannot predict with certainty what will occur in the next few months, let alone what impact it may have on US society, as well as US and world financial markets. But we are of the view that it is vital that stakeholders, institutions and enterprises contemplate the possibility that the US may be in for a period of enormous tension and widespread confusion in the weeks following the November elections, which could lead to civil unrest on a scale not felt in decades. The year 2020 has already been one that has shaken the foundations of what have long been global norms and traditional expectations. And the evidence is mounting that with the US elections approaching, the wild ride may not be over yet.
For our collective sakes, let us hope we as a country find a way well before January 6 to determine with certainty who will stand before the nation on January 20 and swear to “preserve, protect and defend the Constitution of the United States.”
