It may well be, dear reader, that two weeks from now, you’ll know no more about who won this presidential election than I do now, a week before Election Day. It’s happened before.
Most notably, the 2000 election between George W. Bush and Al Gore came down to a single state, Florida. That recount dragged on for weeks before it was eventually settled by the U.S. Supreme Court. Although Gore himself rightly, and honorably, accepted the result, many Democrats never did and would forever consider Bush an illegitimate president. That helped lay the basis for two phenomena that have increased in recent years: the impractical and unnecessary movement to eliminate the Electoral College and many progressives’ inherent distrust of the Supreme Court.
If it comes down to one state this year, it’s probably going to be Pennsylvania, and that would essentially prove my column from last week correct. That’s only the simplest scenario, though. A far more complex scenario, especially given the heightened rhetoric of today’s politics, is one involving multiple recounts in different states, under different sets of state and even local laws governing elections. Back in 2000, Florida counties counted their ballots under different standards before a statewide recount was ordered; this would be similar but with no opportunity to impose a uniform standard.
If Pennsylvania, Wisconsin, Michigan, Georgia and Arizona all were close enough for recounts, they’d all be done separately at the state level. If each state case were appealed to the Supreme Court, the Court would consider each one separately and could order each state to do a statewide recount again.
Theoretically, states and the courts face a hard deadline of Dec. 11, when their electors must be certified, for all of these disputes to be resolved. In actuality, the disputes could drag on well beyond then. Even in that case, if the popular vote totals were still unclear, the governor of a state would have to certify which slate of electors to certify based on the latest certified popular vote results available.
It’s not hard to imagine how all of this could get very messy very quickly. In the past, a state governor would have been likely to choose the slate of electors that corresponded with his or her own political party, or the state legislature might do so, resulting in competing slates. Recently, the Electoral Count Reform and Presidential Transition Improvement Act of 2022 – sponsored by Sen. Susan Collins – made it clear that only the governor’s slate was to be recognized by Congress, and that it had to be based on the popular vote. That bill also made it clear that the Vice President had no authority to reject slates of electors and made it harder for challenges to be raised in Congress. All of these reforms were supposed to reduce the chance of mischief after Election Day, and they were all good, necessary changes that clarified the process.
Still, the potential for challenges in a closely disputed election remains especially one involving multiple states. If a recount or a legal dispute is ongoing, a governor might have to recognize a slate of electors corresponding to a popular vote that’s clearly flawed. A slate of electors based on a flawed count is the political equivalent of a bad call in a game that can’t be overturned because there’s not enough clear visual evidence to do so.
We saw how easy it was for people to convince themselves that there was something wrong with the results in 2020 when there weren’t even any recounts. Imagine that there’s a legitimate basis for a dispute, with multiple recounts and court cases in different states. No doubt the leading party will loudly insist that the losers accept the results no matter the circumstances, labeling the other party as bitter conspiracy theorists.
Similarly, it’s easy to imagine that the losing party would still be able to round up enough support to challenge the count in Congress, even with the increased threshold. That could end up in a long, drawn-out process eventually resolved in a way that conflicts with the apparent initial results. In those circumstances, many people will simply choose to believe that their candidate won. With the country so divided, it’s hard to imagine how that will work out, either before the new president is sworn in or for the next four years when he or she has to try and govern. Let’s hope that, no matter who wins, we have a clear result quickly at least, if not immediately.
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