There have been contested presidential elections in the US and throughout the world. Now according to Rollcall.com there is a possibility that due to a century-old law, and considering the potential for a contested election, there is a possibility that the 2020 election may result in a potential stalemate.
It’s a swirl of ingredients that some election law experts fear could — as unlikely as it may seem — make Section 15 of the Electoral Count Act of 1887 relevant again.
That provision — a paragraph a political scientist called “almost unintelligible” in the year after it was passed — spells out how Congress should count Electoral College votes.
The problems start if a state submits two different election results and the House and Senate clash on which results should be tallied. More later on all the dominoes that would have to fall for that to happen in 2020.
But if that does happen, there are conflicting interpretations of what the law requires Congress to do, Foley said. It’s an ambiguity that he calls the Achilles’ heel of the Electoral College system and Congress’ role in counting votes.
In one reading backed by a legal analysis in 2004, Congress would count the electoral slate backed by the governor of the state. In the other reading, backed by a Congressional Research Service report from 2001, the state’s electoral votes would not be counted at all. The unused provision remains untested.
“It’s not crazy,” Foley said, to imagine two different electoral results from a state that is critical to the outcome of the presidential election, or a group of states that are critical to the outcome. And he says the law lacks full clarity and “does not address the situation.”
Picture the aftermath of the 2000 presidential election between George W. Bush and Al Gore, except it’s Congress that has to decide which of two competing slates of electoral votes from Florida to count.
It might have happened: The Republican-dominated Florida Legislature signaled during the uncertainty of a recount and legal fights that it probably would take the unusual step of appointing a slate of electors pledged to Bush. The court rulings might have led to Gore overtaking Bush in a recount and prompted a competing slate of Gore electors. But the Supreme Court’s Bush v. Gore ruling and the subsequent Gore concession made it moot.
When Michael Stern spun out the dueling Florida scenarios in 2016, the former lawyer in the House counsel’s office and for House committees concluded that the Electoral Count Act had no method to resolve which slate Congress would count and “the end result of this scenario would also appear to be a standoff with no clear path to resolution.” (source)
Now there are many things that one can guess about the future. But the fact is that between Trump, a person who has destroyed his base, has shown contempt for his campaign promises, and has not done much save for speak in a strong voice, versus a Democratic opponent who is clearly showing signs of serious personal and cognitive decline, anything can happen.
2020 will go down in history as a year that, accurately speaking in truth, is completely crazy. Given the unbalanced nature of the current election campaigns, at this point, anything is possible for the 2020 election results, including the above scenario.
These are interesting times and they are likely going to become far more interesting.