A 133-year-old law creates perverse incentives for the Trump administration—and could make a chaotic postelection period even more tumultuous.
Many Americans know that counting all of the votes in this November’s presidential election is going to take extra time. Few people realize there’s a specific deadline by which states must finish.
The 1887 Electoral Count Act seems like an obscure piece of political trivia. But ahead of what could be one of the most contested presidential elections in modern history, some experts worry that this 133-year-old relic of the U.S. Code could endanger the whole republic. The law itself is a relic of the last time the partisan divide got so intense that it nearly ripped apart the country. But no one ever clarified the bits of it that are ambiguous, and no one ever came back to revise or update it. The law is a “morass of ambiguity, which is the exact opposite of what is required in this situation,” a group of legal scholars convened by UC Irvine wrote in an April report of possible election problems. But it’s still the law.
The measure originated in the aftermath of the 1876 presidential election, between Rutherford Hayes and Samuel Tilden, which decided the fate of Reconstruction in the American South. The law requires electors to be chosen for the Electoral College, the constitutionally established body that elects the president, no more than 41 days after Election Day. This year, that date is December 14, 41 days after the November 3 vote. But the expected massive delays in vote counting—because of late-arriving absentee ballots, because of disputes over which of those ballots are valid, because of overwhelmed state election systems, because of recounts, or because of X factors such as direct election interference by foreign or domestic attackers—could mean the country blows past that date without clear results in every state.
By the simplest reading of the act, whoever is ahead on December 14 gets the electors and, with them, the presidency. Many analysts believe that President Donald Trump will appear to be ahead during the early vote-counting—a fact that creates an incentive for him to slow the counting as much as possible. Trump made very clear that he’s going to say mail-in voting is “rigged,” and that he will claim invented conspiracies if he is behind: "I think I did win the popular vote, in a true sense,” he told Laura Ingraham on Fox News last week, still trying to rewrite the clear history of 2016. “I think there was tremendous cheating.”
Could legal creativity and troublemaking slow the voting down enough for Trump to still be ahead on December 14—even if more Americans vote for Joe Biden? It’s possible for vote-counting to take weeks: New York didn’t certify the primary results from its late June elections until early August, and those races had lower turnout than is expected in the general election. Tens of thousands of votes were delayed by post-office failures, and tens of thousands more were invalidated for other reasons. Democratic election lawyers have been carefully watching the Trump administration’s public arguments, trying to divine whether the GOP is laying the groundwork for this sort of effort.
“I used to think of this as the death asteroid that would hit planet Earth: very small chance of this happening, but if it did happen, it would be really, really bad,” Ned Foley, an expert on the Electoral Count Act who is the director of election law at Ohio State University, told me. “Normally the asteroids miss planet Earth. Apparently we’ve got an asteroid heading our way for the night of November 2, which I hope is not a bad omen.”
Consider, for a minute, Pennsylvania. Imagine the race is tight as the votes come in on the night of November 3. Polling-site problems are concentrated in urban areas, which see long lines—exactly like what happened in the state in June, when hundreds of thousands of primary votes, mostly from Philadelphia, took weeks to come in. Trump is ahead early, and stays ahead for the first few days, though new ballots coming in by mail slowly chip away at that lead. Allegations of misconduct and fraud fly around, until what seems like a final result arrives a week or two in, after election officials have invalidated tens of thousands of ballots—more than enough to make up the margin of victory for Trump or Biden. Lawyers for both sides dig in and head to court, but even with expedited proceedings, days tick away while they’re fighting in front of judges. December 14 comes with no resolution. Pennsylvania’s Republican-led legislature steps in and exercises its constitutional right to pick its own electors—a list of reliable Trump supporters. The Democratic governor objects, though it’s not clear he has the constitutional standing to do so, and assembles his own list of electors. Both report their lists to Congress. Because the Democrats control the House and Republicans control the Senate, each chamber approves the electors who favor its majority party’s candidate.
Now there’s a stalemate. If Pennsylvania’s electoral votes can’t be counted, does that mean that being picked as president requires the same 270 electoral votes as normal, or merely 260 (a majority of the total without Pennsylvania)? The experts don’t even agree on whether there’s a clear answer.
Or consider Florida, land of the hanging chad and capital of vote-counting paranoia. Imagine hundreds of thousands of mail-in votes arrive, and the parties fight over which are valid, one by one. The early returns are close, but a higher percentage of Trump votes are kept in than Biden votes. Judges issue their rulings, which are appealed—maybe all the way to the Supreme Court. Except this time, the process takes just a little longer than the 36 days justices took to go with George W. Bush over Al Gore 20 years ago. Already in 2000, the Florida state legislature was moving to pick its own electors. The Republican-majority chambers could get to that point this time around, with Governor Ron DeSantis, a Trump acolyte, cheering them on. If only one list of electors is selected, Congress would have to go with those votes for Trump, no matter what kind of irregularities or newly counted votes for Biden have piled up.
Pennsylvania and Florida aren’t the only states where this could all go wrong. Wisconsin and Michigan have the same divide between Republican majorities in the legislature and a Democratic governor that Pennsylvania does. Ohio has the same full-GOP control that Florida does, as does Arizona.
Sources tell me that the Biden campaign lawyers are preparing for all contingencies.
Importantly, when Wisconsin held its recount in 2016, the new numbers were in by 34 days after the election—well within the Electoral Count Act limit, and even within what’s called the 35-day “safe harbor” provision of the act, which basically forces Congress to accept whatever electoral vote count that the state reports as long as it finishes counting within 35 days. But as wacky as the 2016 election was, it wasn’t in the middle of a pandemic. And as everyone knows by now, a pandemic slows down and complicates everything. The New York primary meltdown was in part a function of a dysfunctional state system that had spent little time preparing for the new realities of 2020 voting.
Reaching the nightmare scenario would take an amazing alignment as well as an election so tight that what happens in these states could determine the winner. A Biden or Trump landslide, or enough states actually succeeding in getting their pandemic voting systems in sufficient shape to do their counting within six weeks, could make the Electoral Count Act irrelevant.
“So much will have had to go wrong at so many other stages of the process to get to a point where everything is coming down to conflicting interpreting of the Electoral Count Act,” Michael Morley, a professor at Florida State University College of Law, told me. “You would have to have a lot of political actors playing constitutional hardball in circumstances where they had serious claims to back them up.”
Then Morley stopped himself and acknowledged that by January 6, when the electoral votes are reported to Congress, he could easily end up looking silly for being quoted downplaying the potential significance of the act.
One key factor that could distinguish this year’s situation from 2000: The litigation that went to the Supreme Court was over a recount, not a count itself. And legislators whose terms are expiring and who will soon be out of power are disincentivized to help delay initial counts into the beginning of next year.
After the elections of 2000 and 2004, there were attempts to challenge electors once they were reported to Congress, using a process that requires one member of the House and one member of the Senate. In 2001, Gore presided over this process as the sitting vice president, overruling objections from Democratic House members defending his candidacy, having told senators he didn’t want them to join in. In 2005, then–Vice President Dick Cheney was in the same presiding role as president of the Senate when the electoral votes came in. That year, a Democratic senator and Democratic House member each challenged the results from Ohio. Their challenge was debated in special sessions, and then defeated.
Hogan Gidley, a spokesman for the Trump campaign, told me twice that he was working on an answer to whether the president’s lawyers were considering the Electoral Count Act as a reason to try to slow down counting, but never provided one. The Biden campaign declined to comment.
Outside of mentions of its safe-harbor provision in the Supreme Court’s Bush v. Gore decision in 2000, the Electoral Count Act of 1887 has been relevant only once: in 1960, at the end of another tight election that included suspicions of vote manipulation. It was Hawaii’s first presidential election, after becoming a state the year before. Richard Nixon was ahead in early counting, despite decisively losing in the overall Electoral College vote. There was a recount, and John F. Kennedy took the lead. Two competing sets of electors were sent to Congress. Nixon, then the sitting vice president, presided over the decision. Because it wouldn’t change who the ultimate winner was, Nixon went for being a gracious loser, said that he wasn’t looking to set a precedent, and accepted the Kennedy electors, based on the results of the recount. No one objected.
“We haven’t had a freewheeling rough-and-tumble over who the next president is since 1876,” Derek Muller, an Iowa Law professor and another expert on the act, told me. “We’ve had a lot of fortune since then.”