The 2020 Election
While this year has been strange, the looming election has added to American’s uncertainty of how the future will look. Due to the pandemic, election procedures have had to adapt to keep people safe, but that doesn’t come without its share of political discussion. The election’s results could take weeks to be verified, even though people across the country have been voting since early October. In order to gain more faith in what could be a more contentious election than usual, we can look to see what the Constitution prescribes for times like this.
The first situation that America could find herself in is a never ending cycle of recounts, similar to the 2000 election. This seems likely due to the general mistrust in the election this year with the increase of mail-in voting and the Russian interference of 2016. While the Supreme Court may not want to take a case similar to the election of 2000, it may be the best way to get a decision. As in 2000, it would have to work through the court systems of whichever state or states are controversial. This could take weeks, as it did in 2000, when Bush v. Gore wasn’t decided until December 12th. Article III, Section 2 of the Constitution gives the Supreme Court appellate jurisdiction in this case by default, unless Congress were to make an exception. In 2000, the Court ruled to keep Florida’s Secretary of State’s recount, which won Bush the election. However, this made many Americans suspicious of the legitimacy of elections. With the addition of Trump’s third Supreme Court nomination, Amy Coney Barrett may increase claims of illegitimacy if Trump were to win a court case. Her decision whether or not to recuse from the case could make either side less likely to trust the opinion.
The second circumstance could be a tie in the Electoral College. This has happened a few times in the early 1800s, but is unlikely due to how populous the United States is. But 2020 has pulled bigger surprises, so just in case, Article II, Section 1 of the Constitution says that the House of Representatives will give one vote per state. This could significantly change the outcome of an election, because there will be only 50 votes, and Representatives must decide for their state. For example, Wisconsin has five Republican representatives and three Democrats, but is “leaning Biden” according to 270 to Win. If Biden won Wisconsin but then had to give each state one vote, it could potentially be won by Trump under the new system. This way doesn’t seem particularly democratic, even less so than the Electoral College. Perhaps this idea would have been more plausible at a much smaller scale, in the early days of the union with considerably less people and eligible voters. Nonetheless, this is what has been laid out for us in the case of a tie from the Electoral College.
The third situation could be a refusal to transition out of power, or in other words, if President Trump loses the election but refuses to concede. This one is a wild card, because it is truly unprecedented for an American president. According to an article from The Atlantic by Barbara McQuade, a law professor from Michigan, he would lose all constitutional authority if he isn’t reelected, and would therefore be a private citizen that would be forcefully removed. This could have serious consequences for cities across America, because of how polarizing of a figure he is. If this were to happen, there would most certainly be public outcry from all sides. The Constitution does not give instructions on what to do if this were to happen, so it is left to norms and institutions to chart the course for what would become a new norm. Both Trump and Biden have called for their supporters to mobilize in order to bring one of them to a decisive victory, so that this situation can be avoided.
Please keep in mind that these three situations are not all encompassing of what could happen. The election is complicated and contentious so any more number of things could change. The Framers could not have predicted a global virus, such a high scale of social unrest and polarization, as well as mass economic uncertainty, so the Constitution, combined with laws and norms, is not inclusive of everything. This election could be a test to see if the Constitution still holds strong in the wake of complete uncertainty. Hopefully, it will be a perfectly normal election that concludes with either a peaceful transfer of powers or four more years of the incumbent.