November 06, 2020

No Clear Winner. Now What? | Breaking Down the Election in Action

6 min

Even as the outcomes of the 2020 presidential election and other key Senate and House races have remained undetermined, attorneys from Venable's Political Law and Legislative Groups hosted a webinar to discuss the electoral process and what lies ahead. Congressman Bart Stupak, Ron Jacobs, Janice Ryan, Josh Finestone, Greg Gill, Will Nordwind, and Josh Raymond addressed the processes by which votes are cast and tallied, what it means to have the presidential election undecided, and what to expect in the coming weeks.

Did early voting – in-person or mail-in – make a difference in this election cycle?

The COVID-19 pandemic likely contributed to higher rates of early voting – both mail-in and in-person – than ever before. In-person voting was generally a smooth process across the country this year, with record-breaking early voting numbers in most places. Counting mail-in ballots takes longer as a general rule and presents the biggest challenges in ensuring accuracy and legality; states determine their own time frames and rules for accepting and counting ballots. At this point in time, those awaiting the outcome of the presidential election are trying to understand how many ballots remain to be counted and which groups of people are represented by those outstanding ballots (i.e., which candidate they trend toward).

Depending on state law, mail-in ballots need to be postmarked by Election Day (or the day before) and received by a date established by state legislature. Pennsylvania's approach to mail-in ballots has been the subject of litigation this year, when the state supreme court extended the receipt deadline by several days and set a high threshold for proving that a ballot received late was not mailed by Election Day.

What are the processes in place moving forward?

We are seeing unofficial results now, which allow for an understanding of who is expected to win the presidential and vice-presidential races – official results are created by the canvassing of votes. When the process of canvassing begins, a recall may be requested, which rechecks all of the votes in a particular state. A recount is what was requested in the 2000 presidential race between George W. Bush and Al Gore. A contest, on the other hand, is a procedure challenging the validity of an election and can be triggered by an event like the discovery of missing ballots. There is also the potential for litigation outside of contests – seeking injunctions against election officials, etc. Each of these options applies to the presidential election but also to other races (House, Senate, etc.).

These processes must be resolved by the time the Electoral College meets to vote on December 14, 2020. Electors meet in their respective states, and each elector submits one vote for president and one for vice president. Certificates of vote are recorded and paired with certificates of ascertainment, which prove the validity of the electors and are provided by state governors. There have never been issues with this simple process, but the potential for conflict can never be eliminated.

What are potential issues that could arise during the Electoral College process?

Although it has never happened before, there is a possibility of having competing sets of electors from the same state. A second possible scenario is that of "faithless electors," where an elector decides not to vote for their pledged candidate. This has occasionally happened, although it has never changed the outcome of an election. Thirty-three states have laws requiring electors to vote for the candidate they have pledged, and 15 states impose sanctions on these faithless electors.

By law, a joint session of Congress held on January 6, 2021 will count the electoral votes. The current vice president—in this case, Mike Pence—presides over the joint session in his role of president of the Senate. But the senators and representatives include those newly elected to the position.

Generally, this process runs smoothly, and once one candidate reaches the necessary 270 votes, he or she is announced as the winner. That said, Congress has a process (rarely invoked) to challenge and consider whether a particular state's electors have been validly appointed. One member of the House of Representatives and one member of the Senate must make an objection in writing before it will be considered. If such a written objection is made, the House and Senate convene separately in their own chambers to meet, discuss, and vote. The challenge stands if both houses of Congress agree to it. At this moment, it would be difficult to achieve agreement because of the split in majority control over the two houses of Congress.

In the event of an electoral vote tie, a contingent election would be triggered. This is also a rare occurrence, taking place only three times in U.S. history. When this happens, the House elects the president and the Senate elects the vice president. Importantly, the House elects the president by state delegation, not by majority vote of the entire body. This means that the partisan composition of the state delegations could be important and could result in an outcome different from what might otherwise be expected for a decision made by the House under ordinary voting procedures. If the House cannot select a president before Inauguration Day, the new vice president becomes acting president on January 20, 2021 until the new president is chosen and presuming the Senate has selected a new vice president. If a new vice president has not been chosen by the Senate, under the Presidential Succession Act of 1947 the speaker of the House becomes president until a new president is selected. The speaker must resign from their position for this to happen and cannot regain that seat. If the speaker declines to serve as president, the president pro tempore of the Senate would be next in line to become temporary president of the United States. Again, however, the president pro tempore would need to resign from the Senate in order to serve as president temporarily.

The morning after the election, predictions of a Democratic sweep of both houses of Congress and the presidency appeared less likely. To the extent the election results in a divided government, with a Democratic president and Republican-controlled Senate, that will stall any progressive policies, and there will not be a path for swift legislative activity. As ballot counting continues in the days following the election, there may be creative lawyering solutions to address election issues that arise. Following the 2000 presidential election, the courts became more adept at handling practical, election-related matters. Any of those matters that cannot be expeditiously handled in lower courts may escalate to the Supreme Court, though whether the high court ends up addressing those remains to be seen.

A recording of this webinar is available here, and Venable's 2020 Election Resource Center is available here.