Legal Scholars Fret Over Plausible Scenarios
With six months to go until November’s 2020 election, dozens of America’s top legal minds convened to consider what would have been unthinkable before Donald Trump’s presidency. They gathered to brainstorm what could be done to prevent the country from descending into a “civil war-like scenario,” as one participant put it, if Trump and Joe Biden both claim that they won the presidency—and won’t back down.
Their May 4 teleconference parsed a series of nightmare scenarios in the aftermath of the November 3 election that would lead to competing Electoral College results being sent to Congress from battleground states—one issued by a Republican legislature backing Trump, and another issued by the Democratic governor backing Biden.
Delving into how Trump and the GOP can hijack the process, they find an untested law, procedural unknowns and few clear constitutional brakes.
The scenarios continued onto January 6, 2021, where, in a joint congressional session to ratify the Electoral College votes presided over by Vice President Mike Pence, the House and Senate were sent to their chambers to debate for two hours. When they reconvened, the Senate backed the Trump electors while the House backed the Biden slate.
The question put before the scholars was what could stop the 2020 election from spiraling that far out of control or going even further downhill, as occurred in the 1876 presidential election when two candidates claimed to win, waged relentless partisan battles, and were both planning separate inaugurations—with Samuel Tilden backing down only 48 hours before Rutherford B. Hayes was sworn in as president.
“My big fear, as a country, is that we don’t know our history well enough to know that we came within 48 hours of inauguration day with two people claiming to be president, and the incumbent thinking about martial law—that was Ulysses Grant because he was worried that there were going to be two simultaneous inauguration sessions,” said Edward B. Foley, director of Moritz College of Law’s election law program at Ohio State University and a national authority on disputed presidential elections. He organized the brainstorming session with Steven F. Huefner, a Moritz senior fellow and former U.S. Senate counsel who also is an expert on vote-counting disputes.
“To replicate that kind of thing [a cascading crisis] on January 18, 2021, in an era with nuclear codes, seems to me an altogether more problematic scenario than even the dire circumstances of March 1, 1877,” Foley continued, referring to the date Congress convened in the Hayes-Tilden dispute. “So it may be a Don Quixote quixotic effort to try to wrestle these legal problems into the ground. But I feel some responsibility to say that we have actually been there as a country once before, and it was not pretty. There might be no avoiding [a calamity] if we go down that road again.”
Never before in recent history have the nation’s top constitutional and election scholars convened six months ahead of a presidential election to ward off what they fear could be a constitutional meltdown if an incumbent president and his most strident partisan allies seek to disrupt or disregard counting votes and the transfer of presidential power.
Lighting the Fuse
Three nightmarish scenarios were put before the legal and electoral scholars:
- In Pennsylvania, an outcry emerges after thousands of Philadelphia voters have not received absentee ballots. Civil rights activists sue, and the Pennsylvania Supreme Court extends the election for these voters—and anyone else in the state not getting their ballot. Pennsylvania’s Republican-majority legislature countersues in federal court to block the extended voting, but it doesn’t stop there. The legislature uses the extension as an excuse to certify a pro-Trump Electoral College slate and submits that result to Congress.
- In Michigan, the crisis begins when early but incomplete election night returns show Trump ahead. But as the counting continues and the momentum starts to shift to Biden, Trump tweets that he won and declares that enough votes have been counted. Michigan’s Republican-majority legislature follows Trump’s tweets and certifies a pro-Trump slate of presidential electors. That unilateral move prompts the Michigan Democratic Party to sue in federal court, using an argument that’s similar to what Republicans cited in the Pennsylvania scenario: pre-existing election rules cannot be ignored.
In these two scenarios, both states’ Democratic governors end up sending a separate certificate to Congress declaring their state’s Electoral College votes should be awarded to Biden. Thus, two sets of Electoral College results from the same state are presented for Congress to sort out. These developments spark an explosion of political posturing, partisan threats and disinformation, and more litigation.
- In the final scenario, in Florida, a state with a GOP governor and legislative majority, the governor cancels the election due to a major hurricane. It cannot be rescheduled before December 14, 2020, when the national deadline falls for all of the presidential electors to cast their ballots. Emergency legislation ensues, and Republicans authorize a pro-Trump Electoral College slate—citing pre-election polling. The Florida Democratic Party sues in federal court, claiming that Florida’s GOP cannot nullify a popular vote election.
What would, could or should happen, Foley asked as the process wound its way through expected and unexpected twists and turns that comprise the presidential election’s final stages. The scholars were asked to identify where legal lines in the sand could be drawn, so that the 2020 election would not disintegrate: where laws lost their meaning, could not be enforced, and what they called “politics not law” could emerge to seize the presidency.
The academics were some of the nation’s most respected constitutional law scholars, election law experts and political scientists. Apart from the U.S. Constitution, the only federal law laying out how to resolve a disputed presidential election was the Electoral Count Act of 1887 (ECA).
That little-known law took 14 years to craft, with debates going back even before the 1876 presidential election debacle. According to a scholarly article by DePaul University’s Stephen Siegel—said by some teleconference participants to be the most authoritative modern exposition on the ECA—the law was “turgid,” “repetitious,” and “contradictory,” and it had been incorrectly interpreted by the U.S. Supreme Court when it stopped Florida’s presidential recount in 2000, elevating George W. Bush to the White House.
These nightmare scenarios and the prospect of an obscure 133-year-old law deciding a post-election battle between Trump and Biden led the scholars to say that even with its flaws, some principles or norms in the ECA had to be clarified before November.
“In the context we’re imagining, any kind of rule structure that can be put on the table in any greater clarity to the focal point that we have with the Electoral Count Act is desirable because you’re basically in a civil war context at this point—or very close to it,” said New York University Law School constitutional law professor Rick Pildes. “I think that is as much as you can hope for. It may be meaningless at the end of the day. It may become a focal point in the midst of this civil war-like scenario.”
Scenario One: Philadelphia Disenfranchisement
The scenarios presented by Foley and Huefner all start on or around Election Day with easily imaginable developments, but escalate unpredictably.
The first scenario starts with voting rights groups suing on behalf of Philadelphia voters who did not get absentee ballots in time to vote. That delay triggered legal battles, first in state court, seeking to extend the election so that Philadelphians and any other similarly affected Pennsylvanian could vote. (In 2018, the Pennsylvania Supreme Court, citing the state Constitution’s protection of voting rights, overturned an extreme gerrymander by the Republican-majority legislature in 2011. That case’s ruling suggests that the court might be open to extending voting in November.)
But the Republican Party of Pennsylvania does not sit idly by. It filed a federal lawsuit to stop that extension of voting, creating what New York University Law School’s Samuel Issacharoff said was a key feature of this scenario: “a turf war” between federal and state courts. (In Wisconsin’s April 7 primary, the Wisconsin Supreme Court, federal district court and U.S. Supreme Court issued contradictory rulings concerning absentee ballots. The U.S. Supreme Court ordered the election to continue—including not extending the deadline for voters not receiving absentee ballots.)
Richard Hasen, a University of California, Irvine, law and political science professor, found the scenario disturbing on many levels. He initially focused on the pragmatic task of extending a vote-by-mail election in a state that did not have a history of widespread absentee voting (which is occurring in many states in response to the pandemic).
“I would hope that if the state court is going to order relief like this, it is going to do what some courts have done in the past, which is bring in election officials and ask them if this is actually doable,” he said. “I’m not confident that Philadelphia election officials would be able to handle thousands of these ballots and be able to process them in a way that wouldn’t raise yet another lawsuit about the due process concerns—about the actual counting of those ballots.”
Court orders can prompt unintended consequences, Hasen said. “We saw it in the Wisconsin case, where the Supreme Court went to the postmark [date on the ballot as a deadline for it to count]. That turned out to create a whole bunch of new issues because there was not consistency in how the local election boards dealt with non-postmarked ballots.”
Teasing out these scenarios left Hasen and others with an uneasy déjà-vu feeling.
“I was having nightmare flashbacks to Bush v. Gore—actually back to Bush v. Palm Beach County Canvassing Board, the first case,” he said, where there were questions about whether a state constitution could legitimize “changing rules for presidential elections… without the state legislature affirmatively agreeing to those changes.”
“If that question arose [in November], I expect that we would see exactly the same ideological partisan division between conservatives and liberals, between Republican-appointed justices and liberal-appointed justices, should it get to the Supreme Court,” Hasen said. “I don’t think that we have made any progress in 20 years… You can hear the arguments being made here, the echoes of exactly what we heard in Bush v. Gore.”
The Pennsylvania scenario is not without a factual basis. Problems with delivering and counting large volumes of absentee ballots occurred in the first two statewide elections held since the pandemic broke in mid-March: Wisconsin’s presidential primary on April 7 and Ohio’s primary on April 28. In Wisconsin, more than 150,000 absentee ballots were not returned on time or were disqualified for other reasons, according to an April 30 court filing by the Democratic National Committee and state Democratic Party.
As of May 7, more than a week after Ohio’s primary, the state’s 88 county election boards had yet to account for 199,693 “outstanding absentee” and 44,368 “outstanding provisional” ballots, according to the Ohio secretary of state’s website. These are not small numbers from either state. The volume of Wisconsin’s rejected ballots in its low-turnout April 2020 primary was more than six times the size of Trump’s 2016 margin over Hillary Clinton in that state.
Later in the nearly five-hour discussion, Michael Morley, a Florida State University law professor, made a telling point that suggested that the Democrats’ intention to protect the vote in the Pennsylvania scenario could backfire. Any major last-minute voting extension was likely not only to be rejected by federal courts—following the U.S. Supreme Court’s Wisconsin primary ruling, he said. But that last-minute change also could give the GOP-led legislature a legal excuse and argument to act on its own to certify a pro-Trump slate of electors—and send it to Congress without the Democratic governor’s signature.
“You could imagine situations where the legislature is stepping in to say… ‘We are appointing a slate of electors reflecting what we perceive to be the accurate outcome based on the election as it was conducted in accordance with state statute—not with what appears to be this judicial deviation from state statute,’” Morley said.
Scenario Two: Overriding the Popular Vote
In the Michigan scenario, Trump declared victory before the vote counting was finished and officially certified. Following his cues on Twitter, its Republican-majority legislature certified a pro-Trump Electoral College slate and sent it to Congress—ignoring the state’s Democratic governor, secretary of state and attorney general. In response, the Michigan Democratic Party sued in federal court, citing much the same legal argument that the GOP used in the Pennsylvania scenario: you can’t change the rules in midstream.
“This scenario is built on the concept of the so-called ‘blue shift’ or late-counted ballot scholarship that some of us have been involved in,” explained Foley, “which is a phenomenon where, with nothing going wrong, but just because of the way in which we have done changes to voting since 2000 and the Help America Vote Act of 2002, it’s just much more likely that ballots are going to be counted, not on election night, but subsequently during the [post-Election Day] canvassing process.”
“This [scenario] also builds on what was observed in Arizona and Florida in 2018,” he continued, citing real-life precedents. “The fear is that we can imagine, for example, President Trump, winning, as it were, or, at least ahead on election night in the count of votes in a pivotal state—let’s say Michigan—and yet that lead disappearing over the next week as additional ballots get counted. And President Trump tweeting, as he did with respect to the Florida election in 2018, saying, ‘No… The initial count is good. Let’s stop counting ballots because we’ve got an accurate count.’ Whereas the election officials say, ‘No, these are valid ballots. They need to be counted.’ And then you have a certified final result after canvassing [the official post-Election Day reconciliation of all votes cast] that puts the Democrats on top, and yet Trump is still protesting that outcome.”
What happens next is a mix of disinformation and bullying that ignores the law and raises yet more demons, namely the old trope that the process is corrupt if your side loses.
“Again, this is all hypothetical,” Foley said. “But what if the Michigan legislature says, ‘You know what? We just don’t trust late-counted ballots. And so we are going to assert our authority under the federal constitutional Article II to appoint electors directly.’ So now we have this conflict between the certified result from the secretary of state that said that Biden won Michigan, but we have the legislature in Michigan saying, ‘No… We don’t trust that result. We are going to appoint the Republican electors.’ So now, the Democrats are going to federal court invoking the same concept of due process—‘hey, don’t change the rules’—as the Republicans cited in the scenario from Pennsylvania.”
This scenario also is not merely theoretical. The battleground states of Michigan, Wisconsin, Pennsylvania and North Carolina all have Democratic governors and Republican-majority legislatures. Whether the most partisan legislative leaders would ignore vote-counting law and procedure, trash election officials and resurrect voter-fraud tropes is an open question that can only be assessed state by state.
In Wisconsin, the GOP-led legislature forced the state to hold its April primary in a pandemic to try to secure a swing vote on the state supreme court—which backfired. Also in April, North Carolina’s top-ranking Republican, Senate Majority Leader Phil Berger, slammed suggestions by the North Carolina State Board of Elections to expedite absentee voting in the pandemic, saying that the procedural reforms came from “progressive, liberal Democratic groups.” Berger further said that he did not trust North Carolina Democratic Gov. Roy Cooper to oversee the 2020 election.
The Michigan scenario raised the question of whether a state legislature has the authority to override the popular vote in a presidential election. The third scenario, in Florida, where a hurricane forced the election to be canceled and it could not be rescheduled before the Electoral College met on December 14, was a variation of this question.
A Line in the Sand—or Not?
The core issue here was whether or not legislatures could act independently—either ignoring the popular vote result and/or bypassing their governor. Later in the discussion, the question came up of whether governors could do the same. (It turned out that the 1887 Electoral Count Act gave governors more authority than legislators.) But for now, restricting renegade legislatures seemed to be a place where scholars could draw a line in the sand, some said.
“I actually think that this may be one of the most important places to seek consensus,” said Justin Levitt, Loyola Law School associate dean for research and professor. “Because of the procedural problems that other people have noted: Who do you sue? Can you enjoin [stop] anything? Is this something that Congress should decide about what to do with different slates of electors? I think if you were looking for [a] robust consensus from a group of people across partisan boundaries who study this issue to weigh in, this would be a place… particularly because the federal courts might not be ideally empowered to make that assessment.”
Levitt was responding to the challenge that Foley and Huefner laid out: Was there a baseline that nationally known experts in constitutional law, election administration and presidential succession could agree on? Was it plainly unconstitutional for legislatures to independently appoint presidential electors to benefit their party?
But the legal answer was not clear. Some conservative scholars on the teleconference said that Congress should take up the issue of competing slates of electors, as it did in 1960 when Hawaii submitted three slates in the photo-finish race between Democrat John F. Kennedy and Republican Richard Nixon. They said it might even be desirable for Congress to openly debate that clash. But could there be an open debate, Foley asked, when in the joint session of Congress on January 6, 2021 (to ratify the 2020 Electoral College results), the presiding officer is the vice president, Mike Pence, a candidate seeking re-election? Some noted that Al Gore had the role after the 2000 election.
As the discussion kept going, the severity of the possible constitutional crisis and lack of clear boundaries sunk in and alarmed some participants.
“This is one of the real nightmare scenarios that could very well take place,” said Norman Ornstein, a historian and resident scholar at the American Enterprise Institute. “We could easily imagine state legislatures in a number of places deciding that they didn’t like the outcome of the election, and trying to shift it to Congress—knowing or believing at that point that we might get the House and Senate disagreeing over which slates of electors to accept, and leaving it to the House of Representatives to decide who would become the president. Then leaving it in a situation where we would not have anybody getting the requisite 270 Electoral [College] votes.”
If the selection of the next president ended up in the House, under the 12th Amendment each state delegation gets one vote. Currently, there are 26 delegations with a majority of Republican members, 22 with a majority of Democratic members, and two states with equal members from both parties—Pennsylvania and Michigan. But before that eleventh-hour process would kick in, Foley said that other steps and legal interventions would likely occur. Meanwhile, could scholars draw a line much closer to Election Day, he asked, by affirming the state’s official presidential election results?
“As long as independently and objectively the election officials, [and] the election administrators, are correct that the popular vote is an accurate count… [is] there a true legal answer to which certificate Congress should adopt?” Foley asked. “If that’s true, then maybe the legal community can rally around that point.”
“Because what I fear is if there has been political pressure that’s going to cause the Michigan legislature to want to supersede the popular vote, there’s going to be political pressure in Congress, for one chamber at least, to try to do that too,” he continued. “Is there any point where legal intervention [can happen]? Not necessarily by a court, but by academics who can say, ‘Wait a second. There’s actually a right answer to this question that Congress should follow.’”
But not every scholar present agreed that the official election results could be trusted.
“Ned, could I jump in here,” said John C. Fortier, director of governmental studies at the Bipartisan Policy Center. “There’s a distinction between, ‘I think… the facts don’t really support that there’s anything [that] was particularly wrong here,’ versus a decision of an election administrator. That decision might be something you find very objectionable. I can bring up election administrators on either side of the aisle [about whom] people would have said, ‘Well, they did that for bad purposes. They made the wrong decision.’”
At this point the discussion entered the constitutional danger zone, where respect for laws and enforcing rules as the underpinning of elections begins to disintegrate.
The scholars wanted to respect precedent and institutional authority. But there were likely to be problems in administering November’s elections in a pandemic, especially as states were poised to make unprecedented shifts to voting by mail. There were little-known and untested ambiguities in the Electoral Count Act, whose rules were written 133 years ago. The longer a presidential election dispute went on, including what might happen if it went before Congress, the more dangerous it became, some scholars said.
“This is a very difficult set of questions,” said NYU Law School’s Issacharoff. “One question is what can be done ahead of time to try to forestall this… I don’t think that the Electoral Count Act is well-settled law. It has been on the books for a long time. It has never been applied. The closest we came to it was its spiritual invocation in Bush v. Gore. It is hardly a blueprint for how institutional actors can settle themselves.”
But some conservative scholars disagreed, noting that the ECA has been used recently.
“In 2001, members of Congress repeatedly on the floor tried to object to counting Florida’s electoral votes, and [then-Vice President] Al Gore said [it was], ‘improper under the Electoral Count Act,’” said Derek Muller, professor of law at Pepperdine University’s Caruso School of Law. “In 2005, they challenged Ohio’s electors—Democrats in both the House and Senate. They debated for two hours. They came back. They counted Ohio’s votes. In 2017, it was a parade of objections on the floor of Congress with [presiding Vice President] Joe Biden saying, ‘It’s over. It’s over under the Electoral Count Act.’ I agree: the two-slate [of electors] question is sort of an open, highly debatable contest. But I do think the Electoral Count Act has served its function the last three times the Republicans have been elected, where Democrats have been contesting the election [result] on the floor of Congress.”
“I think there’s always a question about what one says rhetorically and what actually is driving the result,” replied Issacharoff. “The overriding of the seemingly expressed popular will, by legislative fiat either at the state or congressional level, is, thus far, a radical departure from American norms… I doubt if a single member of Congress had any idea what the Electoral Count Act was or what its provisions might say.”
Politics or Law?
The notion that “politics, not law” could determine the 2020 presidential election outcome began to hover over the discussion’s closing hours. Scholars asked if non-legal factors, such as public opinion after the popular vote was seen as being ignored by partisans, might pressure or sway congressional actions.
“It may make sense to, in the same way that you’d advise a client, [say ,] ‘Look, you need to win beyond the margin of litigation.’ You can also say to the people who are involved, ‘Look, you need to win beyond the margin for intransigence,’” said Lisa Manheim, a University of Washington law professor. “What exactly does that mean? Well, we have been talking for hours about all of the different places where we can have these problems. One of the things that we can do perhaps is to flag those—say those are the problems. We need to avoid those. The truth of the matter is there is not a clear legal answer.”
These kinds of thresholds would likely be where the U.S. Supreme Court would weigh in, several scholars said.
“The question of whether law applies or doesn’t apply is itself a legal question,” said Elizabeth Goitein, co-director of the Brennan Center for Justice’s liberty and national security program. “In the sense [that] a lot of what we are asking is whether Congress can be bound by the Electoral Count Act, that itself is a legal question: Whether Congress can be bound by it; whether it is enforceable. Which is not to say that if the Supreme Court were to resolve that question that Congress would necessarily abide by it, and then we’d be back in the land of politics.”
“I agree with all of this. If we get to this worst-case scenario, with two competing slates and split-party control of the two chambers of Congress, it is almost inconceivable to me that the Supreme Court doesn’t decide that question,” said Adav Noti, senior director of trial litigation and chief of staff at the Campaign Legal Center. He added that Chief Justice “John Roberts, for all his reluctance to get involved in political disputes, the reason he doesn’t like that is to build credibility for exactly situations like this.”
“There is no other mechanism to solve it,” Noti continued. “I think the Supreme Court justices will weigh in, even if it’s a 5-4 decision, before they will let blood run in the streets. Now maybe they will enforce the ECA. They’ll say the governors get to tie-break. Maybe they’ll say, ‘No, the ECA is unconstitutional because under the Constitution, state legislatures have plenary power, so they have to have the tie break. Maybe they’ll say the president of the Senate decides, unless he’s overruled by a majority of senators… But I think they will decide.”
But whether partisan Republicans in Congress would follow the Supreme Court—or any legal framework—as opposed to muscling Trump’s appointment to a second term, is not a given. Not when, as the Amherst College law professor Lawrence Douglas said, the nation’s most fervent partisans seem to be operating under diverging assumptions and principles.
“Maybe the binary that we are drawing between law on one hand and politics on the other doesn’t entirely describe the gravity of the situation that we are confronting right now,” he said. “Rules presuppose certain presupposed normative understandings. And once these normative understandings erode, I’m not sure that rules are really in the position to solidify or reinforce them.”
“This discussion makes me nervous. I assume it makes all of us nervous because it drives home how quickly we can spiral into this dynamic in our current polarized and existential political culture, in which there are no effective legal structures that are going to govern if we get into some of these kinds of disputes,” NYU’s Pildes said. “This discussion drives home the more uncertainty there is beyond Election Day, the more rules are changed at the last minute, whether by courts that think they are doing things in good faith and are worried about protecting the individual right to vote of a few thousand people who didn’t get the ballots they requested for absentee voting and the like; the more that opens up all of the capacity to destabilize the result…”
[dc]“Y[/dc]ou can see from this discussion how quickly those kinds of changes can become the excuse for kind of blowing up the whole election. And that’s part of what I am taking away from this whole discussion.”
Independent Media Institute
Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.
This article was produced by Voting Booth, a project of the Independent Media Institute.