ExplainerTrump vs Biden: what happens if the 2020 US election is contested?
- Trump has not committed to letting a peaceful transfer of power happen if he loses the election
- Presidency could be decided by some combination of courts, state politicians and Congress
US President Donald Trump has claimed without evidence that unprecedented numbers of mail-in ballots will lead to widespread fraud by Democrats in the November presidential election. The president has also repeatedly refused to commit to a peaceful transfer of power if the vote count indicates he has lost to Democratic challenger Joe Biden.
The comments have Democrats worried that Trump’s campaign will seek to dispute the election results. Here are some of the messy scenarios at play:
Lawsuits
Early voting data showed Democrats voting by mail in far greater numbers than Republicans. In states such as Pennsylvania and Wisconsin that do not count mail-in ballots until Election Day, initial results could skew in Trump’s favour, experts say, while the mail ballots counted more slowly are expected to favour Biden. Democrats have expressed concern that Trump will declare victory on election night and then claim mail-in ballots counted in the following days are tainted by fraud.
A close election could result in litigation over voting and ballot-counting procedures in battleground states. Cases filed in individual states could eventually reach the US Supreme Court, as Florida’s election did in 2000, when Republican George W. Bush prevailed over Democrat Al Gore by just 537 votes in Florida after the high court halted a recount.
Trump pushed the Republican-held Senate to confirm Amy Coney Barrett as Supreme Court justice, which would create a 6-3 conservative majority that could favour the president if the courts weigh in on a contested election.
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The US Electoral College: how does it work and why does it exist?
Electoral college
The candidate who wins each state’s popular vote typically earns that state’s electors. This year, the electors meet on December 14 to cast votes. Both chambers of Congress will meet on January 6 to count the votes and name the winner.
Normally, governors certify the results in their respective states and share the information with Congress.
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But some academics have outlined a scenario in which the governor and the legislature in a closely contested state submit two different election results. Battleground states of Pennsylvania, Michigan, Wisconsin and North Carolina all have Democratic governors and Republican-controlled legislatures.
According to legal experts, it is unclear in this scenario whether Congress should accept the governor’s electoral slate or not count the state’s electoral votes at all.
The parties could ask the Supreme Court to resolve any congressional stalemate, but it’s not certain the court would be willing to adjudicate how Congress should count electoral votes.
‘Contingent election’
A determination that neither candidate has secured a majority of electoral votes would trigger a “contingent election” under the 12th Amendment of the Constitution. That means the House of Representatives chooses the next president, while the Senate selects the vice-president.
Each state delegation in the House gets a single vote. As of now, Republicans control 26 of the 50 state delegations, while Democrats have 22; one is split evenly and another has seven Democrats, six Republicans and a Libertarian.
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A contingent election also takes place in the event of a 269-269 tie after the election; there are several plausible paths to a deadlock in 2020.
Any election dispute in Congress would play out ahead of a strict deadline – January 20, when the Constitution mandates that the term of the current president ends.
Under the Presidential Succession Act, if Congress still has not declared a presidential or vice-presidential winner by then, the Speaker of the House would serve as acting president. Nancy Pelosi, a Democrat from California, is the current speaker.
