As if our democratic-republic wasn’t battle tested enough, a disputed election between Biden and Trump could be the tipping point. Thought the past six months were crazy? Now imagine millions of unmitigated mail-in ballots. Trump won, no Biden won, no Trump won.
Get ready for state recounts, crowded streets, Congressional clashes… and litigation, litigation, litigation. As we saw with the Bush-Gore debacle in 2000, this won’t be the first time an election gets heated down to the wire.
This is what a disputed election might look like in 2020.
Busy? Try the speed read.
Big picture With social distancing mandates and divisive partisanship on the Hill, experts speculate as much as a week’s delay on election results. They need to manually count millions of mail-in ballots. And the side-effects of a delayed election are enormous. Who would act as President while we counted the winner?
- As the law currently states, the Speaker of the House, followed by the President Pro Tempore, would fall in succession to serve in the case of a disputed presidency. President Pelosi?
- BUT, Congressional elections occur every two years. That means that every single House seat will expire on Jan 3. That means if the House majority is unclear, the Speaker of the House may be disputed also.
- Section 3 of the 20th Amendment, ratified in 1933, outlined an alternative for undecided presidential elections. Basically, Congress can dub any “Person” deemed suitable for office to serve as president in the interim. That list would stretch out to Former Presidents, Secretaries of State, etc.
What it all means I know it’s become quite a partisan issue, but I truly believe our best bet is to vote at the booth and minimize mail-in ballots. It’s in the best interest of our safety, integrity and ensured continuity as a nation. Enact whatever social distancing policies we need, designate specific time slots for seniors, but make it happen. If Costco can do it, so can we.
Bottom line Given the current political climate, an election dependent on mail votes could be catastrophic.
Dig deeper → 4 min
The prospect of a disputed election
Political pundits have discussed the possibility of an unresolved presidential election this November. With social distancing mandates and divisive partisanship on the Hill, experts speculate as much as a week’s delay on election results. They need to manually count millions of mail-in ballots. And the side-effects of a delayed election are enormous.
Every day that goes by past November 3rd without a designated, legitimate winner is more dangerous than one may think at first glance. There are serious implications from delayed results that put our delicate democratic-republic to the test, especially given the current political climate. Here’s why.
Let’s break down what the ugliest outcome may look like.
Let’s say it’s January. And we still don’t have a winner. Sound crazy? It’s actually possible. I’ll explain why below. But in that instance, do you know who would serve as acting president while Congress debated?
A. Speaker of the House (Nancy Pelosi)
B. President Pro Tempore (Chuck Grassley)
C. A Former President (Obama, Bush or Clinton, Carter is unfit at 96 years-old)
D. There is no clear constitutional answer.
Who would be president during a disputed election?
It. Is. Complicated. There is certainly a history and political paper-trail of disputed elections in the United States. In 1876, there was a nasty debate between Rutherford B. Hayes and Samuel Tilden over 19 electoral college votes. Congress set up a special electoral commission made up of fifteen congressmen and Supreme Court Justices. Hayes won a narrow 8-7 decision along party lines and took the disputed votes, ultimately winning the election.
Still, we find ourselves in 2020 with no clear constitutional answer about who would step in to temporarily serve the duty of president in the case of a disputed election.
As the law currently states, the Speaker of the House, followed by the President Pro Tempore, would fall in succession to serve in the case of a disputed presidency.
As such, it is the responsibility of the House to decide who would become Acting President until a clear answer is revealed for the election.
Throwing Pelosi (she’s the Speaker of the House) in temporarily as Acting President sounds simple enough. The problem? There are several.
The problem with delayed results
1. House election disputes
Congressional elections occur every two years. That means that every single House seat will expire on Jan 3. As Brian Kalt of Foreign Policy puts it…
“If a presidential election is delayed and unresolved because of disputes over the validity and timing of mail-in ballots, many individual House elections — decided by those same ballots — would probably be delayed and unresolved too.”
The Speaker of House is chosen by the majority of the Representatives-elect in a new Congress. If the election is unclear, how would you determine which party has majority control? Expect a swamp of state recounts and litigation.
There has to be a backup plan, right? Only about 1/3 of Senatorial terms will expire on Jan 3. Therefore, the remaining 2/3 can form a quorum and choose a president pro tempore. But similar to the House, a disputed election would make it difficult to pass anything with so many seats up for grabs. Politicians know a thing or two about delaying a process.
2. The 20th Amendment
So, where does that leave us?
Section 3 of the 20th Amendment, ratified in 1933, outlined an alternative for undecided presidential elections. Congress is authorized to pass a law that would choose the Acting President, until a legitimate president is chosen. The Amendment makes it possible to enact any “Person” to fill this role, not limited to a list of officers.
Congress historically has never taken this power seriously, but this election cycle could be a suitable time to exercise it. A more flexible solution to fill the presidential vacancy may turn out to be less controversial.
It is important to note that the incumbent president, if involved in the disputed election, cannot serve as Acting President, given that would defeat the purpose of an ambiguous winner, never mind the existential threat that would pose to our democratic republic (once you stay in, how do we get you out).
3. Politicians are divisive
Let’s say Congress took the more liberal approach and went outside the conventional wisdom of VP-Speaker-Pro-Tempore. The most important factor will be choosing someone capable of maintaining the massive American ship so we can move forward a country in a time of contention.
One would have to speculate that would almost certainly would be a previous or current politician. Think of a prior President, Secretary of State, VP, etc.
Imagine if Obama or Bush had to serve as president for 3 months in January? The implications are potentially catastrophic. The only thing is, any chosen political figure would propagate at least a third of the country in the streets.
What if we had no choice? If we don’t know who controls Congress, that may be our greatest option.
Final thoughts on disputed elections
I know it’s become quite a partisan issue, but I truly believe our best bet is to vote at the booth and minimize mail-in ballots. It’s in the best interest of our safety, integrity and ensured continuity as a nation.
Enact social distancing measures, we all know the drill. Require masks, provide sanitation stations, keep six feet. Dedicate specific voting windows to keep seniors safe.
Do whatever it takes to prevent the inevitable madness that will spark across the North American continent if the antiquated US mail system becomes a logistical/legal nightmare and beacon of our democracy.
If Costco can pull it off, so can we. Choosing chaos is a big bet to make. We are on a wooden ship here in America, and we can’t afford another crack.