Despite incomplete results from several battlefield states that could determine the outcome of the U.S. presidential race, President Donald Trump claimed on Wednesday that he had a victory over Democratic challenger Joe Biden.
The premature, inaccurate move confirmed concerns that Trump would try to dispute the election results. The incumbent also surprisingly called for the mail-in vote count to be suspended, claiming that the count was a “fraud” against the country.
Trump’s comments and stance could spark any number of legal and political dramas in which the presidency could be determined by a combination of courts, state politicians, and Congress.
Here are the different ways the choice can be challenged:
Early voting data shows that Democrats vote in far greater numbers by mail than Republicans. In states like Pennsylvania and Wisconsin, where postal ballots are not counted until election day, the initial results appear to favor Trump as the postal ballots were not counted. The Democrats had raised concerns that Trump would try to claim victory before the postal vote could be fully completed, as he did on Wednesday.
A close election could lead to litigation over voting and census procedures in battlefield states. State-filed cases could eventually reach the US Supreme Court, as did Florida’s 2000 election when Republican George W. Bush beat Democrat Al Gore by just 537 votes in Florida after the Supreme Court did a recount had stopped.
Trump and Biden are trapped in close races as results arrive from battlefield states [File: Mandel Ngan and Jim Watson/AFP]Trump named Amy Coney Barrett a Supreme Court Justice a few days before the election and created a Conservative majority of 6-3 that could favor the President if the courts are weighing a controversial election.
Despite US electoral law requiring all ballots to be counted and the fact that many states routinely take days to take stock, Trump claimed to be on the side of the law when he said, “We want that the law is applied appropriately. So we’re going to the US Supreme Court. We want all voting to stop. “
Disputes in the electoral college
The US President is not elected with a majority of the votes. Under the US Constitution, the candidate who wins a majority of 538 voters, known as the electoral college, becomes the next president. In 2016, Trump lost the national referendum to Democrat Hillary Clinton, but received 304 votes for her 227.
The candidate who wins a state’s referendum usually receives that state’s voters. This year, voters will meet on December 14th to cast their votes.
Usually, the governors certify the results in their respective states and share the information with Congress. Both chambers of Congress will meet on January 6th to count the votes and name the winner.
However, some scholars have outlined a scenario in which the governor and lawmaker in a highly competitive state come up with two different election results. The battlefield states of Pennsylvania, Michigan, Wisconsin, and North Carolina have Democratic governors and Republican-controlled legislatures.
According to legal experts, in this scenario it is unclear whether Congress should accept the governor’s electoral list or not.
While most experts consider the scenario unlikely, there is a historical precedent. The Republican-controlled Florida legislature considered running its own voters in 2000 before the Supreme Court ended the Bush-Gore contest.
In 1876, three states appointed “duel voters,” prompting Congress to pass the Electoral Count Act (ECA) in 1887.
Under the law, each Congress Chamber would decide separately which “duel voters” to accept. From now on, the Republicans will hold the Senate while the Democrats control the House of Representatives. However, the election census will be carried out by the new Congress, which will be sworn in on January 3rd.
If the two chambers do not match, it is not entirely clear what would happen.
Trump’s premature victory claim has confirmed concerns that he would dispute the election results [Ethan Miller/Getty Images]The law states that the voters approved by the “executive” of each state should have priority. Many scholars interpret this as the governor of a state, others reject this argument. The law has never been examined or interpreted by the courts.
Ned Foley, a law professor at Ohio State University, described the ECA’s wording as “practically impenetrable” in a 2019 paper that examined the possibility of an electoral college quarrel.
Another unlikely possibility is that Trump’s Vice President Mike Pence, in his role as Senate President, could attempt to completely dismiss a state’s controversial electoral votes if, according to Foley’s analysis, the two houses cannot agree.
In this case, electoral collegiate law does not make it clear whether a candidate would need 270 votes, a majority of the total, or could prevail with a majority of the remaining votes – for example, 260 of the 518 votes left if Pennsylvania’s voters were invalid.
“It’s fair to say that none of these laws have previously been stress tested,” Benjamin Ginsberg, an attorney who represented the Bush campaign during the 2000 dispute, told reporters on an October 20 conference call.
The parties could ask the Supreme Court to lift a blockade in Congress, but it is not certain that the court would be ready to decide how Congress should count the votes.
A determination that none of the candidates received a majority of the electoral votes would trigger a “conditional election” under the 12th Amendment to the Constitution. That is, the House of Representatives elects the next President, while the Senate elects the Vice President.
Each state delegation in the House receives a single vote. As of now, Republicans control 26 of the 50 state delegations, while Democrats have 22. one is evenly split and another has seven Democrats, six Republicans, and one libertarian.
A conditional vote will also take place in the event of a tie between 269 and 269 after the election; There are several plausible avenues to a 2020 deadlock.
Any election controversy in Congress would take place before a strict deadline – January 20, when the Constitution stipulates the end of the current president’s term.
Under the Presidential Succession Act, the Speaker of the House would serve as the incumbent president if Congress has not declared a presidential or vice-presidential winner by then. Nancy Pelosi, a California Democrat, is the current spokesperson.