Voters had hundreds of voting booths to choose from during early voting for the Kentucky Primary in Louisville on June 15, 2020.
Matt Stone—Courier Journal/USA Today Network/Sipa
Ideas
September 15, 2020 11:45 AM EDT
Jed Shugerman is a professor at Fordham University's School of Law and the author of The People's Courts: Pursuing Judicial Independence in America. He is a member of the New York State Bar Association Task Force on the Presidential Election.

In our own lifetimes, we have witnessed an election with an unprecedented recount problems and a partisan delay strategy. In 2000, it was hanging chads in Florida. In 2020, it could be millions of mail-in and absentee ballots in every swing state, with signatures and deadlines that can be used for delay past the Electoral College deadlines.

In 2000, the Supreme Court decided the election before all the ballots were counted. In 2020, there could be a different undemocratic twist overriding the voters: If recounts are delayed and the Electoral College does not produce a certified majority by early January, the 12th Amendment could allow House Republicans to put Trump back in the White House.

The solution? Any voter who is a relatively low health risk should vote early in-person, even in relatively safe states.

An “election nightmare” scenario, one often overlooked by election experts, is that mailed and absentee ballots are easily challenged in a recount, and recounts can be delayed long enough to kick the election to the House of Representatives — where the vote is by state delegation, not each representative. When no candidate has a majority of the electoral college, the 12th Amendment states, “But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” The same rule was in place for the 1800 election, which is how the Federalists could lose the election but still vote for Aaron Burr and prevent Thomas Jefferson from winning the presidency until the 36th round of ballots in the House.

Every absentee or mailed ballot, even if dropped off directly at the designated county drop box or polling center, most likely will not get counted on Election Day, and it can easily be challenged and delayed and even rejected on a technicality. In an unprecedented pandemic election, the swing states will have to count — and perhaps recount — millions of mailed-in ballots. Trump has railed away mail-in ballots, falsely claiming they increase the potential for voter fraud. After Nov. 3, he can take the next bad-faith step of such lies: All counting of mailed ballots should be litigated and delayed, if not stopped . Due to the 12th Amendment and the massive partisan divide on who is voting by mail and who is voting in-person, Republican lawyers will have an obvious strategy: Slow down all recounts of mailed ballots and throw the election to the House, where Republicans are sure to have at least a 26 state delegations.

While Trump in 2016 won because of the Electoral College’s undemocratic math, his team’s legal strategy in 2020 will be to use the Electoral College’s undemocratic deadlines. Those procedural rules would allow Trump to kick the election to a strange vote where the House will look more like the small-state-dominated Senate. This twist was a compromise during the founding of this country: populous states dominated the Electoral College, but small states won on the backup plan. Even if Democrats outperform their 2018 blue wave, Republicans will have at least 26 state delegations in 2021. (The Democrats have a realistic shot at making Pennsylvania a 24th state, but no realistic shot at winning a 25th state.)

Every mailed or absentee ballot, in an envelope with signatures, is its own hanging chad, its own built-in legal delay. A mailed ballot can be challenged based on postmark, arrival, signature, etc. Lawyers can use these challenges in bad faith (like they did in Florida 2000) to grind any count to a halt. In 2000, Florida used hole-punched ballots, and any ballot had a “hanging chad” of scrap paper if the hole wasn’t fully punched (generally because of inequitable resources and old machinery or uncleaned machines). In the recount, any hole-punched ballot with a “hanging chad” could be challenged and scrutinized for “voter intent.” Lawyers could ask to scrutinize even the ballots that were mostly punched for Bush or Gore. The Bush campaign had the lead and had a majority of states in the House, so they had an incentive and a strategy to delay.

Trump will have a similar incentive to delay and run out the clock on the Electoral College. He is likely going to have a temporary lead on election night before the millions of mailed ballots are counted. This is another reason to vote early in-person if you can: Early in-person votes will be counted on Election Day, while the counting of mail and absentee ballots varies from locality to locality, and is often delayed for a while. Election night momentum is crucial. Some predict a “red mirage” on election night because of the partisan split on same-day vs. mail voting, in which several Democratic strongholds will appear in the Trump column on election night. The more Biden votes are counted on election night, the more momentum Democrats will have on the map and in the math, and the less opportunity for Trump to cherry-pick and spin in bad faith.

Slowing down that count and recount will allow him not only to prematurely claim victory based on the “red mirage.” It will also allow him to block any majority vote in the Electoral College. Imagine if each signature and postmark would take five minutes to confirm by a recount canvassing board in each county, with lawyers from both sides. Half of all votes in 2020 are likely to be mailed or absentee. Imagine Philadelphia County trying to count 350,000 absentee ballots. One county board would need more than 1,200 days. Miami-Dade would need to count more than 500,000 mailed ballots. One board would need almost four years of counting. Could counties legally add more recount boards? It’s more likely that lawyers could fight those efforts while also making sure each ballot took, on average, more than five minutes. This is a recipe for running out the clock on the Electoral College.

If legal delay or litigation means that Biden states are blocked from certifying their electors, Biden will not reach 270. Trump’s lawyers cannot block every Democratic state, but given the huge numbers of absentee ballots, they can likely trigger automatic recounts or go to court for recounts in relatively close states. This delay could block enough Biden-leading states from certifying their electors that Trump to have a lead in a “rump” Electoral College (meaning an Electoral College missing the votes of many blue states). Or what if a state recount is hopelessly stuck and state officials try to appoint electors? A Republican legislature might try to claim authority under Article II of the Constitution and certify Trump electors in the midst of the deliberate delay. A state court might say this is a question for the courts and certify a Biden slate. If some states’ electors are missing, or some states have competing slates of electors, what constitutes a “majority” of “appointed electors”? This chaos would benefit Trump, especially if he had an initial lead, just as Bush did.

Ordinarily, one would turn to federal courts to resolve such legal disputes, but there surely will not be enough time – nor enough judicial will – for the Roberts Court to make sure every ballot is counted. Federal statutes set a deadline for December 14 for states to choose their electors, and Congress counts the Electoral College votes on January 6.

Would the Roberts Court intervene like the Rehnquist Court did in Bush v. Gore, creating a new interpretation of equal protection to stop the recounts? Perhaps. But that intervention could benefit whomever had an initial lead with in-person votes (in this case, Trump). More likely, the Roberts Court would prefer to invoke a doctrine it has relied on before: the “political question” doctrine, which holds that if the Constitution delegates a question to the political branches, the courts should let those branches resolve the matter without judicial intervention. At that point, the election would get thrown to the House (like Jefferson v. Burr in 1800). Then, the House Democrats would have to take the extreme steps of refusing to convene the House entirely or refuse to allow some duly elected Republicans to take their seats, and the crisis would simply escalate. Voters need to wisely vote in person to reduce the chances of such a crisis.

Early in-person voting still has health risks. However, early voting usually has much shorter lines than on Election Day. If you show up on one early voting day and see a long line, you can go back earlier the next day. If you’ve already requested an absentee ballot, many states allow you to still vote in-person early, as long as you bring your absentee ballot with you or take steps to destroy the absentee ballot, but it may mean casting a “provisional” ballot in some states (which has similar vulnerability to delay as an absentee ballot). Make sure you find out your state’s rules here, here, here or here. Not everyone has the flexibility or the health profile to vote in-person, but for most people, democracy is worth some risk. Just remember John Lewis.

The bottom line is that many key swing states have early in-person voting, often over many weeks: Michigan, Florida, North Carolina, Arizona, Nevada, Georgia and Texas. If you have relatively low health risks for COVID-19, you have a duty to vote early in-person in 2020.

 

Contact us at letters@time.com.

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