Election law experts say that Congress should clarify a provision to the 133-year-old law for picking the president in order to avoid a constitutional crisis if there is no clear Electoral College winner by Inauguration Day.
The election law in question is Section 15 of the Electoral Count Act of 1887, which one political scientist has called “almost unintelligible,” according to Roll Call.
“If you’re asking the question what should Congress do to prepare for November, [clarifying the provision] would be on the top of the list,” constitutional law professor Edward Foley said.
Foley is also the director of Ohio State University’s election law program and has written on the provision and hosted an online expert roundtable discussion about it.
“The problems start if a state submits two different election results and the House and Senate clash on which results should be tallied,” Roll Call reported.
If that were to happen, Foley says there are conflicting interpretations of the law and what Congress would be required to do.
One interpretation holds that Congress would count the electoral slate supported by the governor, and the other says the state’s electoral votes would not be counted.
Foley called the provision the “Achilles’ heel” of the Electoral College system.
A law professor at the University of Iowa who focuses on election law said that although it would be nice for clarification on the provision, there are a lot of other election issues Congress could provide clarification on.
An election “happens every four years and you haven’t had a major problem in over 130 years,” professor Derek Muller said. “It’s tough for Congress to get too bent out of shape about it.”
Although the odds of this scenario happening are low, possible disputes about the election have already been foreshadowed and 2020 has already seen its fair share of rare events, including a presidential impeachment trial and a global pandemic.
One possible dispute that has already started is the legitimacy of mail-in voting and absentee ballots.
President Donald Trump and his campaign have argued that mail-in voting will benefit Democrats and create a possibility for election fraud, Politico reported.
The Republican Party has also started a legal battle to stop Democrats from using the coronavirus pandemic to ease up on restrictions for remote voting.
“My biggest risk is that we don’t win lawsuits,” Trump said in a Thursday interview. “We have many lawsuits going all over. And if we don’t win those lawsuits, I think — I think it puts the election at risk.”
In a 2004 law review article on the electoral count system, law professor Stephen A. Siegel wrote that the problem with Congress providing clarification on the provision is that each state’s vote can be predicted.
“No matter what substantive criteria and processes Congress adopts for judging the propriety of each state’s electoral vote, in a close presidential election, when each state’s vote is known beforehand, partisans on every side will usually be able to game the system to figure out grounds to reach the result they want,” Siegel wrote.
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