Capital Tonight asked several scholars about post-election scenarios that scare the hell out of them.
Four academics responded to our request. Here’s what they told us, starting with an important reminder, and a post-election timeline:
David Driesen, Law Professor at Syracuse University:
“No state ever certifies election results on election night, partly because they always have to count mail-in ballots, which get counted late. But the public is used to getting results on election night because the media makes statistical projections based on partial counts and exit polls. Because many millions of voters are using mail-in ballots in this election out of fear of contracting COVID-19 at a polling place, there will be no responsible basis for declaring a winner of the presidential election on election night, unless one candidate wins in a landslide.”
David Bateman, Associate Professor of Government at Cornell University:
“To understand the various scenarios that could play out, it is important to understand the timeline of events.
November 3: Election Day, with some states being called that evening, others being called sometime during the day on November 4, and others having too many outstanding ballots to be called until later that week or later in the month.
December 8: The so-called "safe harbor" date. If a state is able to certify a slate of electors by this date, then Congress has statutorily tied its hand and will accept the slate without further inquiry.
December 14: The electors in each state meet to vote for president and vice president.
January 3: The new Congress is sworn-in
January 6: The new Congress convenes and counts the electoral ballots. In a joint session of Congress, the sitting vice president opens the votes and passes them to four tellers, two from the House and two from the Senate, who announce the results of each state. Members can object to a result, and the objections are first considered by each chamber separately and then the results of those deliberations are disclosed in joint session. If either chamber rejects the objection, then the electoral votes count. If neither side has a majority after this process, then the incoming House will decide the result, voting by state delegations.
January 20: Whomever is certified by Congress at the end of this process is sworn in by the chief justice.”
Scenarios
Syracuse University Professor Jennifer Stromer-Galley studies misinformation; she shared a possible scenario that could play out on social media:
“Both Biden and Trump are running or attempting to run advertisements on social media to either declare or imply that they won the election. While Facebook and Google declared a ban on ads that declare a winner on the day and after the election, campaigns can still buy ads on websites and other social media platforms that have not declared bans. Facebook has already taken down an ad that the Trump campaign attempted to run that declared Trump was still the president. Ads that declare the winner can sew confusion and shape public opinion.”
According to Bateman, a Cornell associate professor of government, the big open questions about election night are the size of the margin between Trump and Biden in the critical states; and when there will be enough counted ballots to call the election in these states. He says something could go wrong at each moment in the timeline (above). Below is one of the possible scenarios we could see unfold during the 79 days between Election Day and Inauguration Day.
"Pennsylvania is the major worry here, because it is likely to be the pivotal state, it is legally hampered in its ability to count mail-in ballots quickly, because the now supersized far-right majority on the U.S. Supreme Court is already being invited to revisit its decision to let stand several rulings of the state supreme court, and because it has a Republican legislature but Democratic governor.
If the result is sufficiently close, or the partisan difference between mail-in and in-person ballot is sufficiently large, then Trump will plausibly insist that he's won but is being cheated by Philadelphia and Pittsburgh politicians. At that point, the legislature might follow through on a threat that the state Republican party has already indicated its considering, of stepping in and naming its own slate of electors. The likely result would be competing slates of electors, one certified by the Department of State and the Democratic governor, and the other by the Republican legislature."
According to Syracuse University Professor of Law William C. Banks, who is also a professor of public administration and international affairs emeritus, because there are more Republican state legislatures than Democratic ones, Donald Trump could likely win a second term if the Electoral College tally isn’t clear by December 8.
"Even with the courts' tendency to stand in the way of counting late-arriving ballots, some states will be counting mail and absentee ballots that clearly meet state requirements after November 3. Biden may get to 270+ late on election night, but if he doesn't, he still could in the day or two after. The federal courts will matter only if one or more crucial swing states are close enough to turn on contest ballots. If the Electoral College tally isn't clear by December 8, then yes, Trump wins the congressional vote."
Syracuse University Professor David Driesen studies totalitarian regimes. Like Professor Bateman’s, Driesen’s scenario begins in Pennsylvania where most absentee ballots will not start being counted until November 4. Pennsylvania law permits counties to begin counting mail-in and absent votes beginning at 7 a.m. on Election Day, but does not require that they do so. According to Politico, while Pennsylvania’s secretary of state has urged counties to start counting as soon as possible, some GOP counties aren’t willing to do that “citing a need to prioritize resources for in-person voting.
“On November 3: Preliminary vote count totals indicate that Trump is ahead in key battleground states, including Pennsylvania. Trump declares victory and tweets that the Democrats are trying to steal the election. He tells his supporters to be vigilant and not to let the Dems steal the election. Fox News announces that Trump has won. The responsible media say it’s still a toss-up. Republican lawyers file lawsuits, arguing that some of the absentee ballots in Pennsylvania were illegally cast and should not be counted. But a federal district court dismisses the suit.
On November 4: Trump’s lawyers ask the Supreme Court to vacate the district court order dismissing the suit and to stay the vote counting to ‘preserve the court’s jurisdiction to hear the appeal.’ Democratic voters take to the streets in Philadelphia to ‘save the vote’ fearing that Trump is trying to enlist his Supreme Court in a campaign to steal the election. In Philadelphia, some demonstrators loot stores. Nobody knows if they are Dems or Trump supporters.
Trump tweets, ‘See their trying to steal the elections. Don’t let them do it.’
Armed vigilantes attack demonstrators in Philadelphia.
November 7: The Supreme Court, alarmed by the unrest, issues a stay stopping the vote counting, causing crowds to swell and street battles to erupt. Demonstrations marred by sporadic violence continue.
November 30: The Supreme Court resolves the case, ruling against the Republicans and dissolves its stay, letting ballot counting resume.
December 1: Pennsylvania’s Republican legislature appoints its own slate of electors. (The Constitution says that the legislature chooses the method of selecting electors. The popular voting custom is based on state law). Its leaders say that it is now too late to count all the ballots in time for the December 8 “safe harbor” provided for in federal law, which protects the state’s electors from challenge.
December 7: Pennsylvania’s Democratic governor vetoes the legislation naming a slate of electors and designates his own pro-Biden slate of electors based on incomplete absentee balloting totals suggesting that Biden might be ahead.
December 14: The Electoral College meets. A raucous meeting ensues with inconclusive results because of the competing slates of electors.
January 6: Congress convenes to count the electoral ballots. Since there is a contest about Pennsylvania, the contest goes to the House, where each state’s delegation gets one vote. But key House races are contested, and no clear outcome emerges from this process. Both sides are now accusing each other of stealing the election and violence in the streets is getting worse. Trump sends paramilitary units to attack pro-Biden demonstrators.
January 20: Inauguration Day? Both sides claim victory. The marshals refuse to oust Trump. The Army is considering whether to back Biden.
January 21: Since there is no new president, Nancy Pelosi becomes president by statute, but Trump refuses to leave.”
Like Professor Banks, Professor Bateman acknowledges that what happens post-election could be determined by the number of state legislatures that are either Democrat or Republican.
“If a state isn't able to get a slate certified by the safe harbor date, December 8, for whatever reason, or if two slates are sent in by this date, then Congress would likely have to make a decision, either to count no electoral votes from that state or to choose between slates.
If Congress is to decide, then the vice president would presumably choose one slate to open, which could either be read by the tellers of both chambers or could be rejected by one or the other. Or there might be an objection to either slate.
If Democrats have control of both chambers, an objection to a Republican electoral vote for the state would likely stand. If not, it would depend on whether any Republican senators could be persuaded to vote with the Democratic House. If the state's vote was rejected and that deprived either side of a majority, then it would be decided by the House. But now it would depend on whether the Democrats, who are almost certain to keep the chamber, were also able to win a majority of the state delegations. Pelosi has already indicated that winning a majority of state delegations is absolutely essential, and she has targeted a number of specific congressional seats with that goal in mind.
If there is not some acceptance of the result by both sides at any stage in the process up to now, then we have the doomsday scenario of both Trump and Biden potentially claiming to be president-elect. Or, Trump claiming to be president and Pelosi insisting that she is acting-president under the terms of the 25th Amendment until a deadlock is resolved.
The chief justice would then have to decide by January 20 whether to swear-in one or the other, and the other side would have to decide whether to back down and accept it.
Roberts would presumably act in accordance with the bare formalities: if Republicans, regardless of how, are able to navigate the process such that they "win" at each stage, Trump will be inaugurated. If Democrats win both chambers of Congress and a majority of state delegations, and the Court hasn't stuck its hand in again, then Biden will be inaugurated.
This is all nightmarish stuff, because it is hard to see how any result would be broadly accepted as legitimate after such a process.”
Final thoughts from Professor Bateman:
“The bigger truth, however, is that the U.S. republic has long been corrupting from the inside: few of its institutions are seen as wholly legitimate, and I can't imagine broad popular acceptance of any decision made at any one of these stages beyond that of a quick election win and clear certification.
But the whole reason we're worried is because even that prospect seems dubious. Once a country reaches this stage, only the idea of it continues to inspire loyalty. The regime itself, and either of the parties purporting to control the offices of that regime, do not. You can't govern without an idea of the country, but you sure as heck can't govern with only an idea, and without broad acceptance of the regime that claims to embody that idea.”