Testing the Electoral College process against judicial overreach

If the 2020 election is disputed, it will test the workability of the constitutional, federal and state statutory procedures to elect a president against a candidate asking the Supreme Court to again act as a super-legislature.

Supreme Court involvement will ensure a continuous fight over presidential legitimacy. George W. Bush and Barack Obama were considered illegitimate by some portion of the nation. This time, half the nation may believe the next president is illegitimate.

Forget Russian interference, there are no algorithms for gaming the outcome of the Electoral College process. It was designed by compromise, not logic. We need to let the solid judgment of the Founders’ compromise play out.

Disputed elections can have surprise endings. Election disputes usually arise when one candidate has a small vote lead but the other candidate alleges that if certain votes are counted, he/she would win. With surveys estimating 80 million people voting by mail, each state having different deadlines for counting votes and political parties spending millions to create legal disputes, it’s likely deadlines will be missed and challenges to slates of electors filed.

The determining factor in 2020 is whether disputes can be resolved in 35 days after the election, i.e. before December 8, 2020. If disputes are resolved within that time period, the selection of electors is “conclusive” and must be accepted by the next Congress, starting January 3, 2021. It was in this safe-harbor period in 2000 that the Supreme Court intervened in Bush v. Gore. Its order, de facto, deemed electors “conclusive.”

Electors from states with unresolved disputes will be resolved by Congress in accordance with federal statutes governing presidential elections and vacancies. In separate proceedings, each House must decide which set of state electors to certify. If the House and Senate agree on a slate of electors, the slate is certified. If the House and Senate cannot agree, the electors certified by the governor of the state are counted.

After certifying contested elector slates, Congress counts the electoral votes. If one of the candidates receives 270 electoral votes, that person is president. If no person has a majority of electoral votes, the House, voting by state, each state having one vote, votes to elect a president. The person receiving votes from a majority of states is president.

Which party benefits from this dispute resolution process? Currently, Democrats control the House but Republicans in Congress hold majorities in 31 state delegations and 26 governorships. In seven swing states, Democrats hold majorities in four, Republicans in two. Republican governors in swing states hold a 4-3 advantage.

There is no timeframe for completing this part of the process, thus the need for the Presidential Succession Act, which establishes a line of succession to ensure that the nation is never without a president.

Notwithstanding electoral disputes, President Trump’s term ends at noon on January 20, 2021.

In electing a president, there is a role for electors, state legislatures, governors and Congress. There are, however, according to one analysis “…no federal laws allowing judicial contest proceedings over disputed federal elections.”

Notwithstanding the established constitutional and statutory process, the U.S. Supreme Court in Bush v. Gore usurped Congress’s power to elect the president when it blocked the Florida Supreme Court’s order authorizing recounts. Florida’s initial vote count gave Bush 1,784 more votes than Gore. The margin of victory was so narrow that state law required an automatic recount. Gore sought a manual recount. The secretary of elections, a Republican, denied the recount request. The Florida Supreme Court extended the recount deadline. Bush appealed to the U.S. Supreme Court, which vacated the order of the Florida Supreme Court; ruling that Florida’s order violated the Constitution’s equal protection clause. By ending the state mandated recount, the court in effect selected Bush as president.

Even if Florida had missed the safe-harbor deadline and submitted competing electoral slates to Congress, Bush would have been elected president. Both houses of Congress were controlled by Republicans. Even if there was a disagreement between the House and Senate, federal law mandates that the slate certified by the governor be counted. Gov. Jeb Bush would have certified George W. Bush’s electors.

In 2000, the Supreme Court disrupted constitutional and statutory procedures used by states and Congress to elect presidents. In 2020 the court will again be asked to set aside the role of Congress and states. If the court again elects the president, it will undermine its legitimacy, our Constitution and trust in democracy.

William L. Kovacs is author of “Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens” and a former senior vice president at the U.S. Chamber of Commerce.