Worst-case scenarios abound for this election. Maybe they are overblown and, God willing, will not materialize. Maybe history — which tells us that elected incumbents running for re-election do not end up in close contests — will repeat itself and the now-even contest will break decisively for one candidate or the other as the campaign closes. [IMGCAP(1)]
Unfortunately, there is a substantial chance that we will end up with another nailbiter — and if that happens, I suggest going to a manicurist to secure extra-long false nails, because you can expect to be biting them for more than a few hours or even a couple of days.
Let us assume that we have another election like 2000. Florida was the only state that ended up with a challenge, but there were several other states that were in very close contests. This time, every state within 3 percent will end up with scores of legal challenges filed by hundreds or thousands of lawyers, who already are geared up in every battleground state.
This time, though, we would have another set of problems to confront. Early voting is well under way in many states. The vast majority of states now have no-excuses absentee voting, and our best estimates are that more than 20 percent of voters, maybe even 25 percent, will cast their ballots before Election Day, most of them by mail.
The parties are going to extremes to maximize early votes, undertaking massive efforts to motivate voters at home and overseas. But each ballot cast by mail has to be opened physically by election officials after the election, then counted. The process takes days or weeks after Election Day. In addition, many states allow 10 days or more after Election Day to receive overseas absentee votes. If a state is close, the results may hinge on those overseas absentee ballots.
Now add another key factor: provisional votes. The Help America Vote Act, enacted after the 2000 debacle, required the allowance of provisional ballots when voters at the polls were questioned about their eligibility. How and under what circumstances provisional ballots will be allowed to count is under intense controversy in many states, most notably the key battleground of Ohio.
There will be many thousands of provisional ballots cast in battleground states in this election, and much controversy. Each will need to be resolved after the election, perhaps in a quasi-judicial proceeding. However they are resolved, it will not happen quickly.
So, given that information, now consider the time lines. The best resource for this is the new edition of “After the People Vote,” a wonderful, must-have book put together by my colleague John Fortier. (Full disclosure: I have been a part of this book since the first edition was compiled by my remarkable colleague Walter Berns, so my view of its merits is not entirely objective.)
Here are the relevant dates. Election Day — the first Tuesday after the first Monday in November — falls on Nov. 2 this year. By statute, the electors meet and vote on the first Monday after the second Wednesday in December — Dec. 13 this year, or 41 days after the election.
The “safe harbor” day that figured so prominently in the Supreme Court ruling in Bush v. Gore falls six days before Dec. 13, or 35 days after the election. That is the date — underscored in the aftermath of the election dispute of 1876 — by which states, if they resolve any disputes surrounding their electors, can feel safe from a serious challenge to their electoral votes in Congress.
That challenge, if it occurred, would be on Jan. 6, the date set by statute for Congress to meet, to take formal possession of the electoral votes, to consider them and to count them and ratify the presidential choice. (This will be the new Congress acting, since the old Congress leaves on Jan. 3.)
When Florida was having trouble resolving its dispute over vote counts in 2000, litigation and the intervention of the Florida Supreme Court pushed the time for counting Florida’s votes close to the “safe harbor” date. Several Supreme Court justices, led by Antonin Scalia, used that date to justify their own expedited intervention that led to Bush v. Gore.
This time, there’s an even greater chance that many states will be delayed in counting all their absentee and provisional votes and resolving who will, at least in the first cut, win their electoral votes. And in these states, and others, there will be litigation out the wazoo — Florida 2000 times eight, 10 or 15, with many more lawyers and none of them inclined to give an inch. Dec. 13 will be on us quickly, and the temptation by the court to short-circuit the process again will be overwhelming.
The court, in my view, was wrong to intervene in Bush v. Gore. That it was the “strict constructionists” who precipitated the intervention is even more ironic. The Constitution and the law offer firm provisions for resolving of disputes over states’ electoral votes: They clearly are meant to be resolved by Congress.
True, in 2000 we had a virtual perfect storm, with a narrowly divided House and a tied Senate, and the tie in the Senate, if necessary, broken on Jan. 6 by then-Vice President Al Gore. It could have been hairy. But that is not the concern of the court, at least not a genuinely strict-constructionist court. Theirs was a radical intervention. It would be even more shameful if it happened again.
What to do? One easy step available to us would be to move the date for electors to vote to Jan. 2 or 3, thus extending the period for counting votes and adjudicating disputes by nearly three weeks. Rep. David Price (D-N.C.) has been drafting such a bill, and it should be passed before the election.
Here’s another reason to pass it: One of the periods of greatest vulnerability for presidential succession is the time between when the electors vote and the Congress ratifies its votes. What if terrorists take out the president-elect and the vice president-elect during that interregnum? There is no way for the electors to meet again and recast their votes for other alternatives.
If that happened, Congress, meeting on Jan. 6, could either refuse to count the votes cast for now-deceased people — effectively letting the losers win the presidency — or count the votes and let a vacancy occur in both posts at noon on Jan. 20. At that point, the Presidential Succession Act would kick in, with the Speaker serving as acting president for a full four years.
Imagine if John Kerry and John Edwards were to win the presidency, were then removed by terrorist acts, and the result is President Dennis Hastert. At least if the president and vice president-elect are assassinated before the electors meet, the electors can vote for replacements (electors bound by their state laws might face misdemeanor punishment, but would no doubt be willing to take that chance).
The quick and easy way to reduce both these problem is to adopt the Price plan, reducing the period of vulnerability to a few days from its current three weeks. Please, Congress, do something on this — and do it before Nov. 2.
Norman Ornstein is a resident scholar at the American Enterprise Institute.