By Michael S. Dauber
Presidential election years are typically filled with newsworthy events, highly visible debates, and the occasional October surprise. But the 2020 Presidential election will occur in the midst of a global pandemic that has killed well over 200,000 Americans, adding a plethora of logistical issues to a process that already requires significant coordination across the country in an ordinary year. Concerns over the impact of social distancing protocols on voters’ ability (or willingness) to get to the polls and vote, as well as the serious health risks that could accompany in-person voting, have forced some states to heavily modify their usual voting procedures by adopting widespread mail-in balloting. At the same time, the Trump administration has expressed concerns over unsubstantiated worries of mass voter fraud. With the possibility of a close presidential election, the American legal system is bracing for a series of unprecedented legal controversies as the nation sorts out the election results.
Although the electoral college system has its roots in the United States Constitution, individual states set their own election procedures, including the ways voters cast their ballots. Ballotpedia.com contains a thorough database of all of the changes and expanded deadlines states have instituted for this year. Although key swing states like Florida and Ohio have kept their ordinary election procedures, many states, like New York, have chosen to allow greater use of absentee balloting, while others have chosen to adopt universal mail-in balloting as a means of mitigating health concerns over voting in-person during the COVID-19 pandemic while ensuring that all registered voters can exercise their rights. States like California and Iowa automatically sent ballots to all eligible residents, even if they did not request them. Other states, such as Alaska and North Carolina, allow mail-in balloting, but require a witness to sign the ballot to prevent fraud. But new changes from ordinary procedures have raised scores of legal challenges across the country, and the Supreme Court has already ruled on a number of cases in advance of the election, sometimes without issuing opinions.
For instance, in Pennsylvania Democratic Party v. Boockvar, which addressed legislative changes to election procedures that began even before the COVID-19 pandemic, the Supreme Court declined to stay the Pennsylvania Supreme Court’s decision to allow state election officials to count mail-in ballots that are received by November 6th, so long as there is no indication that they were postmarked or mailed after polls close on Election Day. The ruling came despite the fact that the Pennsylvania Election Code appeared to suggest that mail-in ballots could only be counted if they were received by the relevant county Board of Elections by 8:00pm on Election day at the latest. Similarly, the Court allowed a six-day extension of the ordinary mail-in ballot deadline to remain in place in North Carolina in Moore v. Circosta, allowing mail-in ballots to be counted as long as they are received by November 12th. But the Court reached the opposite result in a similar case, Democratic National Committee v. Wisconsin State Legislature. According to reporting and analysis by CNN, the Court has not been willing to overturn decisions by state courts, but, as in the Wisconsin case, will not allow federal courts to alter election rules so close to the election.
In addition to the time votes must be received, litigation has arisen over the nature of polling places and ballot drop-boxes themselves. On October 21, the Court stayed a lower court ruling that would have allowed curbside voting in Alabama in Merrill v. People First of Alabama, again without explanation. Alabama’s Secretary of State had forbidden curbside voting, but a District Court had found the policy produced a disparate impact on disabled voters, in violation of the Americans with Disabilities Act. And significant litigation has taken place in Texas, where Governor Greg Abbott ordered each county in the voluminous state to have only one ballot drop-off box. As of this writing, the Texas Supreme Court affirmed the order in Abbott v. The Anti-Defamation League.
Election-watchers can also likely expect litigation over polling hours. Polls typically close between 7pm and 9pm local time the day of an election based on jurisdiction, but long lines sometimes prevent everyone who wants to vote from casting their ballots in time. As a result, parties have filed emergency petitions to keep polls open longer in past elections. With stringent social distancing protocols in place in many jurisdictions, courts may need to consider far more petitions than usual, which could create further delays in receiving election results.
Aside from challenges to election procedures themselves, increased use of mail-in and absentee balloting and difficulties counting ballots amidst the pandemic will likely mean that we won’t know who won the presidential election, or any elections, on Election Day itself. Moreover, it is possible that a close race and ongoing litigation could mean that neither presidential candidate reaches 270 electoral votes (at least clearly), which could force the House of Representatives to decide the election in a so-called “contingent election,” a scenario that has not occurred since 1824, when the House awarded the presidency to John Quincy Adams, even though Andrew Jackson had more popular and electoral votes.
That process could become even more complicated if House elections are hotly contested and subject to litigation when the contingent election would be set to occur. Presidential terms end on January 20th of the year after the presidential election, but House terms begin on January 3rd, meaning the next Congress will select the President in the event of a contingent election. But if significant litigation over any of those new seats is pending, courts may need to rule on who could participate in the contingent election itself, especially if a current representative’s term has already expired.
Analysts and lawyers alike have already invoked references to Bush v. Gore, in which the Supreme Court controversially determined the outcome of the 2000 presidential election by stopping an ongoing recount in Florida and making George W. Bush the de facto winner of the election. On September 18, 2020, Associate Justice Ruth Bader Ginsburg passed away, setting the stage for a bitter confirmation battle over her replacement. Back in 2016, Senate Majority Leader Mitch McConnell (R., Kentucky) blocked Judge Merrick Garland’s confirmation hearings, arguing that a Supreme Court seat should not be filled in an election year. But in the lead-up to the 2020 election, President Trump emphasized the need to fill Justice Ginsburg’s seat so that the Court would have nine justices to decide any election controversies that arise. With former Seventh Circuit Judge Amy Coney Barrett’s confirmation as the Supreme Court’s newest associate justice on October 27, 2020, any election cases before the High Court will be decided by a 6-3 conservative majority. Republicans subsequently moved the Court to reconsider its Boockvar decision in Pennsylvania, but the Court denied expedited review on October 28, 2020. As of this writing, Justice Barrett has not participated in any of the recent election cases.
At this stage, it is impossible to tell how the election will develop. It is unlikely that voters will have a complete picture of the electoral map on election night and, even if they do, they can expect litigation to continue for weeks or even months. With the congressional and presidential terms set to expire on January 3rd and 20th, respectively, one thing is certain: this election and the transition to the next administration and Congress, whoever is in charge, will be like no other in American history.