What Happens if the Election Results Are Contested

By Eleanor Lutz, Allison McCann and Amy Schoenfeld Walker

New York Times, Nov. 3, 2020

Even in a normal election year, the contest for president is not exactly straightforward.

States tally the popular vote based on early and Election Day ballots, but the president is ultimately chosen by the Electoral College, which is made up of electors from each state. Here is how it usually works:

This year, it is unlikely to go so smoothly.

A large volume of mail-in ballots means counting and canvassing may take longer than usual. The result may be close enough in some states to draw recounts. And experts say the likelihood of legal challenges in one or more battleground states is high.

It could be weeks before President Trump or Joseph R. Biden Jr. is named the winner. In some scenarios, the contest drags into 2021.

Already, armies of lawyers for the Trump and Biden campaigns are preparing for an onslaught of litigation. Mr. Trump has long pushed allegations of voter fraud without evidence and raised questions about the validity of the mail-in vote. Lawsuits over ballot deadlines and when to count or toss out votes have already been filed in critical states.

“This election won’t be resolved until a losing candidate concedes defeat and congratulates his opponent,” said Edward B. Foley, an Ohio State University law professor. “And if the candidates don’t give us finality that way, then the legal process has to give it to us.”

Here is how uncertainty over the results in the coming days and weeks could lead to battles in court, in the Electoral College, and, ultimately, in Congress.

Disputes over the results

The results that states report on election night — or in the hours after — are always unofficial, as it can take several days and even weeks for officials to count, confirm and certify the vote.

The outcome may be close, and candidates can dispute the initial results.

Recount: In some states, like Florida, Ohio and Pennsylvania, the state will initiate an automatic recount if the unofficial voting margin is close. In other states like Iowa and Nevada, candidates can request a recount regardless of the margin.

In the 2000 presidential election, a narrow margin in Florida triggered a recount in all counties, and Al Gore later filed suit to force hand recounts in four predominantly Democratic counties.

Results contested: Disputes over whether election officials are counting too many ballots or too few could set off a wave of litigation in both state and federal courts that could ultimately find its way to the Supreme Court.

In some states, members of the executive branch or other bodies have a say. In Texas, the governor has the sole authority to settle presidential election disputes. In North Carolina, the independent State Board of Elections could get the final word.

And in every state, the legislature can step into the process to choose electors.

Disputes over electoral votes

States must appoint their electors before the Electoral College meets to formally cast its votes. This year, the deadline to choose electors to ensure their votes are counted by Congress is Dec. 8. This is known as the “safe harbor” deadline.

Recounts and legal challenges could threaten a state’s ability to meet the deadline.

Resolved by deadline: If the outcome of a recount or a dispute is swift, a state can appoint its electors, and the governor will prepare a certificate detailing the popular and electoral votes.

Most states appoint their electors to the winner of the statewide popular vote. Nebraska and Maine assign electors by congressional district, and two votes go to the winner of the statewide vote.

Unresolved by deadline: A state legislature has the authority under the Constitution to appoint the state’s electors, regardless of the status of the popular vote, and particularly when a state hasn’t made a decision by the safe harbor deadline. A state legislature could decide that election results, still in dispute, are unlawful and select their own electors.

In 2000, Florida’s Republican-majority Legislature voted to select a slate of electors backing George W. Bush, even as the courts were still handling the recounts.

Disputes may not end there. Election law experts caution the governor and legislators could disagree about the outcome and could each choose to appoint rival slates of electors supporting different candidates.

In several battleground states, the governor is from a different party than the majority party in the state legislature, setting up the possibility of dueling electors. Both groups might meet to vote, and Congress would have to decide which votes to accept.

Disputes in Congress

Electors will meet in each state on Dec. 14 to cast their votes. But some electors could choose to vote for a candidate other than the one they promised to support, or decline to vote altogether — these are known as “faithless electors.”

The newly elected Congress meets on Jan. 6 to formally count the electoral votes and name the president. If there is no clear winner in the Electoral College, Congress would hold a contingent election.

One candidate wins a majority: Congress counts the electoral votes from each state in alphabetical order, with the vice president presiding. A candidate needs a majority of the votes to win. That figure is 270, unless Congress disqualifies a state’s electoral votes. Members of Congress can challenge or reject the electoral votes, though that process is complicated and rare.

No majority: If the count reveals that the candidates are tied or if no candidate receives a majority, then the House of Representatives votes to choose the president. Each state’s delegation gets only one vote, so a candidate would need 26 votes to win.

It is possible that Congress could fail in its job on Jan. 6, with two candidates each still claiming to have won, said Mr. Foley, the Ohio State law professor. The country faced an equivalent situation in 1876, when claims of voter fraud forced a special electoral commission to decide the election just two days before the inauguration.

“I do think it is a fundamental problem in our American political system that we have this vulnerability that we have not fixed, even though we have come close to this disaster before,” Mr. Foley said.

Additional work by Alex Leeds Matthews.