How Can a Presidential Candidate Contest the Results of the Election?
Donald Trump said during Wednesday night’s debate that he couldn’t guarantee that he will accept the results of the November 8 election, but would have to “look at it at the time.” Trump has repeatedly warned in recent months that the election will be “rigged” and added on Thursday that he’ll accept the results “if I win.”
While close elections have led to court battles and recounts, once the results have been finalized, no presidential candidate in U.S. history has contested the result.
But if a candidate on either side believes that the election results aren’t legitimate, what can they do about it?
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They have to go to the states
CNN’s Steve Vladeck, who is also a professor of law at the University of Texas School of Law, broke down how to contest an election on Thursday. As Vladeck notes, a presidential candidate cannot contest the results of an election at the national level, they have to go state-by-state. That’s because the electoral system in this country is largely left up to the states and controlled by local secretaries of state and other elections officials.
Any question about the validity of election results would have to be run through state courts, individually for any area where the results are questioned. Potentially, these fights could make their way all the way up to the state supreme court.
But Vladeck points out that these cases are unlikely to make it to SCOTUS. The Supreme Court’s intervention in the 2000 election was highly unusual and it was based on the Court’s feeling “that the unique manner in which the Florida state courts had ordered a manual recount violated the U.S. Constitution.” The public wasn’t a huge fan of SCOTUS getting involved in that case, Vladeck writes, and given that the Court is one-justice short it’s “highly unlikely” that they’ll get involved in the 2016 election.
There’s a federal law, the Electoral Count Act of 1887, that requires that states certify their election results “within 35 days of the election” in order for their votes in the Electoral College to count, Vladeck writes. In close elections, many states have their own laws that require recounts to determine a winner if, say, there’s a 1 percent difference between the candidates. That has to be done within that 35-day timeline, barring a legal challenge to extend the deadline.
And it’s important to remember that on election night, the numbers that the states are reporting aren’t final. Typically, they still have batches of absentee ballots and provisional ballots (those cast by voters whose eligibility to vote has to be confirmed after-the-fact) that need to be counted. Generally, the winner is clear enough that those ballots wouldn't make a difference. But in a really close election in a particular state, those ballots can be pivotal and a candidate can sue in state court to make sure that they’re counted (or not).
Not every state will matter
Because of the Electoral College, presidential candidates aren’t necessarily competing to win more states or the popular vote, they’re racing to get to 270 electoral votes. So even close races in some states won’t make a difference in the final outcome of a presidential campaign and pushing back on those results would be pretty meaningless.
Vladeck points again to the 2000 race, in which George W. Bush and Al Gore fought over the results in Florida even though the race was even closer in New Mexico. Florida had enough electoral votes to change the outcome, New Mexico didn't.
What happens if no one gets to 270?
Then it goes to the House, where each state (not each representative) gets one vote for president and whoever has the majority wins. Given the political divisions of the congressional delegations in purple states like Colorado, those could be some really fascinating back-room discussions. Thanks to the 12th Amendment, only the top three presidential candidates can be considered by the House.
Currently Republicans make up the majority of 33 delegations, Democrats control another 13, while four state delegations are evenly divided. However, it’s not the current Congress that would be casting their votes, as that responsibility would fall to the newly elected Congress.
The newly elected House take on electing the president and the Senate would vote on a vice president before January 20. But if they haven’t resolved things by then, the Senate could choose a VP first so the country wouldn’t be indefinitely leaderless while the House figures out who the president will be. In the Senate, they don’t have to vote by state; each senator would get his or her own vote.
This has actually happened three times in U.S. history, Vladeck notes, in the elections of 1800, 1824 and 1876. In 1800, the House chose Thomas Jefferson over Aaron Burr, after taking 36 different votes. John Quincy Adams was selected over Andrew Jackson in 1824. And in 1876, Congress declared Rutherford B. Hayes the winner in three states where the results had been disputed, making him president, even though he lost the popular vote by three percentage points and had been behind in the Electoral College count as well.
What happens if there are still problems when all that is over?
Once the states have certified their results, ballots have been recounted, absentee and provisional ballots have been tallied and any court cases seeking recounts or throwing out ballots have been resolved, that’s pretty much the end of the ballgame — at least if you look back at U.S. history. A candidate who contests the results at that point “would be unprecedented in American history,” Vladeck writes.
— Sarah Mimms and Eric Revell
Photo via Wikimedia Commons