It’s been nearly 20 years and a lot has happened since then.
On Tuesday, December 12, 2000—exactly five weeks after that year’s Election Day—the U.S. Supreme Court issued its decision in Bush v. Gore, transforming election law and ushering in two decades of intense litigation over the voting process that shows no signs of abating. Ironic, perhaps, for a decision explicit that its “consideration” was “limited to the present circumstances” and thus intended to have only narrow, if any, precedential effect.
But no opinion gets to control how it is used by subsequent courts and litigators. Lawyers for candidates in campaigns ever since Bush v. Gore have been exploiting that case as an illustration of what judges can do if they are willing to intervene in an election dispute and settle the rules for casting and counting ballots.
On Tuesday, December 12, 2000—exactly five weeks after that year’s Election Day—the U.S. Supreme Court issued its decision in Bush v. Gore, transforming election law and ushering in two decades of intense litigation over the voting process that shows no signs of abating. Ironic, perhaps, for a decision explicit that its “consideration” was “limited to the present circumstances” and thus intended to have only narrow, if any, precedential effect.
But no opinion gets to control how it is used by subsequent courts and litigators. Lawyers for candidates in campaigns ever since Bush v. Gore have been exploiting that case as an illustration of what judges can do if they are willing to intervene in an election dispute and settle the rules for casting and counting ballots.
Many lawyers were surprised when the Court granted the first cert petition presented to it in the litigation over the Florida recount in the 2000 presidential election. The case seemed to involve only issues of state law—the timing of deadlines for local election boards to complete their certification of vote totals and whether manual recounts of ballots were mandatory or optional as part of this certification process. But the Florida Supreme Court’s handling of those state law issues was, to put it charitably, so creative or, to put it less charitably, so at odds with a straightforward reading of the relevant statutory language.
At least four justices of the U.S. Supreme Court felt compelled to look at whether the state court may have violated the federal Constitution. Article II says that state legislatures have the power to choose how to appoint presidential electors. George W. Bush’s lawyers were arguing that by its bizarre interpretation of the state’s statutes, the Florida Supreme Court had essentially robbed the state legislature of that power.
That the Florida Supreme Court was populated with elected Democrats and its unusual interpretation favored Al Gore didn’t help to give the federal justices, or at least four of them, confidence that the state judiciary was deciding the case impartially. Thus, the high court took on the case, to keep the state judiciary in line. When it first sent the case back on December 4, 2000, it was with a unanimous signal that the state courts should make sure to appear nonpartisan when handling such a high-stakes election dispute.
But the Florida Supreme Court wouldn’t take the hint. In a new phase of the recount proceedings, it continued to interpret the relevant state statutes in ways that were at odds with natural readings of their texts, and it continued to require the trial court to invent a special statewide proceeding for which there were no statutory provisions or guidance.
That judicial inventiveness, especially after the previous warning, was too much for the U.S. Supreme Court majority to tolerate. In a dramatic Saturday order responding to Bush’s emergency request for a stay, it immediately put a stop to the state court proceedings. Although it held an oral argument on the following Monday and issued a decision on the merits the next day, it was the Saturday stay that took the election out of the state court’s hands, making it inevitable that the final result would be the same as what the local boards had certified.
Along the way, however, the majority’s reasoning had morphed from its initial Article II concern about the prerogative of the state legislature to an “equal protection” problem with the state court’s willingness to tolerate inconsistent treatment of identical ballots in its manufactured statewide recount procedure. In shifting to the equal protection rationale for shutting down the state court recount, the Court’s majority lost the unanimity of its initial remand warning. The four dissenters would have given the Florida Supreme Court yet another chance to do a recount properly, but the majority had lost patience with its state court counterpart and ordered a halt to any additional recounting, even though the normal practice would be for further proceedings “not inconsistent” with the federal decree.
However odd Bush v. Gore might have been as an example of federal Supreme Court supervision of state court litigation, its “equal protection” holding was an immediate indication of how the federal Constitution could be used to control the operation of a state’s electoral processes. Not surprisingly, in the very next presidential election, partisans began to use that equal protection precedent to challenge the rules and procedures for conducting elections, especially in swing states. Florida of course remained a focus of attention, but so too now was Ohio, which turned out to be the pivotal battleground that year.
Ohio faced a flurry of lawsuits in the last few weeks leading up to Election Day 2004. One, concerning the state’s procedures for challenging the eligibility of voters at polling places, went all the way to the U.S. Supreme Court in a midnight emergency stay application that Justice Stevens denied before dawn on Election Day. But in so doing, Justice Stevens issued this implicit warning: “I have faith that the elected officials and numerous election volunteers on the ground will carry out their responsibilities in a way that will enable qualified voters to cast their ballots.”
In that way, Justice Stevens made clear that the federal judiciary stood ready to intervene to protect voting rights as might be necessary. In a separate lawsuit about the 2004 voting procedures in Ohio, the Sixth Circuit condemned the long lines caused by the dysfunctionality of Ohio’s overall electoral system, saying that the disenfranchisement it caused, although not enough to affect the outcome of the presidential race that year, was a violation of the equal protection rights recognized in Bush v. Gore.
In 2008, the pattern repeated itself. Provisional ballots, which were new in 2004, had demonstrated their significance and became a focus of litigation in 2008. Once again, Florida and Ohio were center stage. The Eleventh Circuit issued a major 2–1 decision not to count provisional ballots cast by voters who would have been eligible but for clerical errors they made in the submission of their voter registration forms. And Ohio had multiple lawsuits involving provisional ballots that year, including one involving a congressional race in which the disputed ballots determined which candidate won.
Voter identification also became an intense subject of litigation heading into the 2008 presidential election. The U.S. Supreme Court decided a case—or sort of did—concerning Indiana’s voter identification law. In a deeply fractured ruling, a plurality opinion by Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, rejected a facial challenge to the law but left open the possibility of as-applied challenges on behalf of any voters who might actually be disenfranchised by the identification requirement. (The plaintiffs had not identified any such voters.) The availability of those as-applied challenges proved a boon to litigators in battleground states, as they went to court to make sure that no voters would be harmed by unduly draconian voter ID laws.
In 2008, the U.S. Supreme Court also fielded another emergency stay application from Ohio, this time involving rules for matching the state’s voter registration database with driver’s license information. In an en banc proceeding, the full Sixth Circuit had split deeply over whether Republican plaintiffs could sue to challenge the secretary of state’s database-matching protocols. A majority of the appellate judges (Republican appointees) voted to let the lawsuit proceed.
In a welcome exercise of unanimity, however, the Supreme Court vacated the lower court ruling on the ground that it was manifestly inconsistent with recent jurisprudence concerning the availability of private rights of action to remedy or address violations of federal statutes, as the Ohio secretary of state was alleged to have done. That litigation, however, like election-related lawsuits generally, showed the danger of federal judges dividing along partisan lines in the heat of fast-moving proceedings that might affect the outcome of an imminent presidential election.
Four years later, in 2012, Ohio continued to be mired in litigation over its voting procedures, including its rules for provisional ballots. The Sixth Circuit invalidated the state’s draconian requirement that a provisional ballot be rejected even if the voter cast it at the correct location but at the wrong table. Known colloquially among election officials as “the right church, wrong pew” requirement, it was too much even for a panel of conservative judges.
Ruling the disqualification of those ballots a form of unjustified disenfranchisement of valid voters in violation of the Fourteenth Amendment, the court explained that the rule “effectively requires voters to have greater knowledge of their precinct, precinct ballot, and polling location than poll workers.” In a separate ruling, the Sixth Circuit did require voters to get to the correct polling location to have their ballots counted.
The Obama campaign also sued Ohio over a separate provision of its election laws, one that gave military voters more days of in-person early voting than nonmilitary voters. The Sixth Circuit affirmed an injunction against that differential treatment as a violation of the Fourteenth Amendment’s Equal Protection Clause, in large part because the state could offer no cogent explanation for why its legislature had decided to differentiate between military and nonmilitary voters in this way. Although the state tried to get the Supreme Court to block the Sixth Circuit’s ruling, this time the high court declined to become involved.
In the last presidential election, the monumental one between Hillary Clinton and Donald Trump in 2016, the litigation spread to all the battleground states. While one might have thought that there were no more issues left to litigate concerning Ohio’s voting procedures, Ohio continued to receive more than its fair share of election-related lawsuits. The Sixth Circuit invalidated Ohio’s strict rules for completing absentee ballots. A different panel of the same appeals court upheld the state’s rather generous period of early voting against a challenge, brought by Democrats, that the state discriminated against African American voters by offering fewer days of early voting than it previously had provided.
When Democrats accused the Trump campaign and its allies, including Roger Stone, of intimidating voters, the Supreme Court was once again asked to supervise the state’s voting process. The Court declined to intervene, but Justice Ginsburg—echoing Justice Stevens from 12 years earlier—made clear her expectation that state officials would take all necessary steps to prevent the wrongful disenfranchisement of valid voters.
In addition to Ohio, Florida of course received the attention of litigators in 2016. There was a successful suit to extend the state’s voter registration deadline because of Hurricane Matthew. A few days later, in mid-October, there was another successful suit to enjoin the state’s procedures for invalidating absentee ballots because of a signature mismatch.
Reflecting the increasing importance of absentee ballots as a preferred method of voting, there was also litigation over Arizona’s rules regarding the handling of absentee ballots by third parties. The Ninth Circuit enjoined the state’s rules as violating both the Voting Rights Act and the federal Constitution, issuing its ruling four days before Election Day. The very next day the Supreme Court stayed that ruling in a one-line order, presumably on the ground that the Ninth Circuit had interfered with an election after the casting of ballots was already under way.
Wisconsin, reflecting its new status as a pivotal state, was also the site of intense litigation in 2016 over its voter identification law, as well as other election procedures. Multiple lawsuits bounced between different district courts and the Seventh Circuit, creating considerable confusion as to just what were the rules to be enforced. The upshot for any attorney able to read the flurry of opinions in these cases was that no voter willing to undertake the effort of obtaining an ID from the state’s Department of Motor Vehicles was to be denied the right to cast a ballot that would count. But not all affected voters were capable of following all the twists and turns of the complicated legal maneuvers, and it is not at all clear that voters adequately understood that they were being protected by the federal judiciary from the disenfranchising effects of the state’s statutes.
There remains a great debate among politicians as well as political scientists about whether Wisconsin’s restrictive laws had the effect of suppressing turnout enough to determine the outcome of the presidential election in the state, despite the genuine but perhaps futile desire of the federal judiciary to prevent that kind of improper manipulation of the voting rules. (Wisconsin alone wasn’t enough to affect the overall Electoral College outcome in 2016, but even the possibility that a single battleground state might be flipped by a strategy of preventing eligible voters from casting ballots is a reason to fear that something even more pivotally pernicious might happen in the future.)
The year 2018 was not a presidential election year, and yet its voting procedures were litigated with almost the same intensity as in the presidential election years since Bush v. Gore. The other intervening non-presidential elections had triggered some lawsuits, but the fight in 2018 was more ferocious, reflecting the perception that the political stakes are higher in the wake of President Trump’s 2016 victory. And 2018 was seen as something of a preview of the battle to occur in 2020.
Florida, yet again, was the focus of litigious attention. The state had high-profile races for both U.S. senator and governor that year. Before ballots were cast, there were lawsuits about felon disenfranchisement, the prohibition of polling locations on college campuses, and the lack of Spanish-language sample ballots. After ballots were cast, and preliminary returns showed both races extremely close—with over 8 million total votes cast, the Republican was ahead by only 50,000 votes in one race and by only 30,000 votes in the other—Democrats went to court in the hope of being able to make up the difference. They couldn’t. But they did get Chief Judge Mark Walker of the federal district court in Tallahassee to enjoin the state’s signature-matching procedures for absentee and provisional ballots. Judge Walker based his decision on the kind of county-by-county variation in standards for counting or rejecting ballots that the Supreme Court had found invalid in Bush v. Gore.
Although the Democrats could not pull ahead in either of those two Florida races, they did close the gap considerably in both. The final result in the U.S. Senate election was only 10,000 votes. As Republicans watched their leads narrow, fearing they might disappear entirely, they too went to court in an effort to secure their victories. They trained their sights in particular on one local election official in Broward County, who refused to provide information necessary to verify the accuracy of the vote tallies there. A state court judge quickly required her to provide that essential information.
In addition to suing to protect their leads, Republicans, including President Trump, took to the airwaves and to Twitter and other social media to argue that Democrats were attempting to steal these two statewide elections. The rhetoric was as hot as at any point since Bush v. Gore and arguably hotter, even though the presidency was not on the line and the disputed margins were nowhere near as close. President Trump tweeted:
The Florida Election should be called in favor of Rick Scott and [GOP candidate] Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible - ballots massively infected. Must go with Election Night!
Incumbent Governor Rick Scott, who at the time was the Republican candidate in the U.S Senate election, declared: “I will not sit idly by while unethical liberals try to steal this election from the great people of Florida.” Democrats then promptly went to federal court to get Governor Scott recused from any official role in the state’s vote-canvassing and certification procedures. Chief Judge Walker declined to issue an injunction, observing that Governor Scott’s words, while brushing right up against the line of impropriety, did not cross the line of constitutionality because they did not actually affect the official counting of ballots and instead were the words of a candidate who was entitled to complain about the vote-counting process.
Something similar happened in Arizona, which also had a close U.S. Senate election in 2018 and which is turning into an electoral battleground. Before Election Day, there was renewed litigation concerning the state rules that prohibited who besides a voter could return a voter’s absentee ballot to local officials for counting. After Election Day, litigation ensued concerning the state’s signature-matching standards for absentee ballots and, in particular, the extent to which local election boards differed in their willingness to permit voters to correct clerical problems, including an apparent signature mismatch.
As in Florida, the Arizona Republican candidate was ahead in preliminary returns on election night, but that lead started slipping away as additional ballots were counted during the canvassing process. Unlike in Florida, in Arizona the Democratic candidate was able to overtake the GOP lead. Although Republicans, including President Trump, initially and vociferously cried foul, once it was plain that no amount of litigation would be able to undo the shift in outcome that resulted from counting additional valid votes, the Republican candidate conceded graciously.
That Arizona did not explode in a paroxysm of “voter fraud” accusations is a sign that, at least in some states and in some contexts, democracy in America is capable of still working.
In 2018, Georgia also became a focal point of voluminous and spirited voting-related litigation. Although the state previously had been colored solidly red, it had begun to trend purple. In the gubernatorial election, Stacey Abrams, a Yale Law School graduate and former leader of the Democrats in the Georgia House of Representatives, was running against the incumbent secretary of state, Brian Kemp. Kemp was widely perceived, including by nonpartisan observers, as aggressively using his office to achieve an advantage in the election.
Among the many lawsuits filed against Kemp and his office, one specifically accused him of violating the Fourteenth Amendment by using his powers as secretary of state to “tilt the playing field” to his advantage. It sought an injunction barring Kemp from participating in any aspect of the vote-counting process. Rather than defend against it, Kemp resigned. But by that time, although the outcome was close, Kemp had won enough ballots to secure the governorship.
Still, as a result of all the lawsuits filed over the 2018 election in Georgia, the federal courts issued decrees enjoining the state’s use of voting machines incapable of being audited, as well as the state’s procedures for disqualifying absentee ballots for clerical errors and its similar procedures for rejecting voter registration applications for comparable clerical errors. Those decrees mitigated some of the harshness of Georgia’s especially draconian rules and almost made a difference in the outcome of the highly competitive governor’s race.
Such was the lay of the land on New Year’s Day of this year. Because of all that had transpired since Bush v. Gore, at the start of 2020 the small cadre of election law specialists was anticipating an especially intense year of litigation. In fact, plans for unprecedented levels of voting-related lawsuits were openly public. Plaintiffs on the Democratic side—led by Marc Elias, the top attorney for Team Blue—already had filed seven suits in battleground states, including an Arizona case in federal court to change the date by which absentee voters must return their mailed ballots. Soon that issue would figure prominently all around the country, but for what were then still unanticipated reasons. As the year commenced, Elias was promising more suits to come.
Then COVID-19 struck and all hell broke loose. The worst, of course, was in the hospitals, especially those in New York during those most intensely horrible first few weeks. But there was electoral hell as well, particularly in Wisconsin in early April. With politicians of both parties pointing fingers at each other over whether to postpone the state’s April 7 primary election, historically unprecedented numbers of Wisconsin voters requested absentee ballots. Usually, it’s 1 in 10; this time it was more than 6 in 10.
The primary was occurring at precisely the time that voters were being told to shelter at home to “flatten the curve” of COVID-19 cases, and thereby protect hospitals from being overwhelmed with intensive care patients. Dr. Deborah Birx, the officially titled White House Coronavirus Response Coordinator, told voters to avoid going to grocery stores that week if at all possible. But the Wisconsin voters who had followed all proper procedures in requesting absentee ballots were not receiving them. Local election officials had become inundated by the tsunami of those requests and simply could not keep up. The Wisconsin Election Commission reported the backlog daily, showing the number of those who had not yet even been sent a ballot, much less received it to be able to mail it back by Election Day, as a state statute required. According to those numbers, over 10,000 voters would be disenfranchised.
What to do?
Because of a partisan stalemate in the state—the legislature controlled by one party, the governor belonging to the other—voters who had not yet received their requested absentee ballots were essentially told to go to the polls, even at the risk of their own health and the whole curve-flattening effort. In this nightmarish time of the pandemic, the bizarre message that Wisconsin’s voters received was, “if you don’t want to be disenfranchised, ignore Dr. Birx!”
Amazingly, even heroically, Wisconsin’s voters obeyed. On April 7, with fear of COVID in the air at every moment, wearing masks and protecting themselves and each other as much as they could, they went to the polls. But at least in Milwaukee and some other cities, there were hardly any poll workers to serve them. They had to wait in line—extra-long lines because of social distancing. By some reports, lines of up to five hours. “THIS IS RIDICULOUS,” said one homemade sign held up by a voter wearing a red-white-and-blue U.S. flag mask, standing in a seemingly endless line.
Of course, there were lawsuits over that Wisconsin debacle. One, on whether the governor had the authority to change the election’s date, went straight to the state’s supreme court. There, the night before Election Day, the justices split sharply 4–2 in a conventionally polarized way. One justice recused himself because his own reelection bid was on the ballot in the same election, which was both a presidential primary election and a springtime general election for a seat on the state’s supreme court.
A close reading of the opinions revealed a possible way around the ugly 4–2 split, if, instead of the governor attempting to assert authority over the election calendar, the state’s chief public health official had asserted authority over public gatherings during contagious pandemics. But the partisan finger-pointing had caused so much delay that there no longer was time to explore the possibility of a judicially crafted compromise. The polls were opening in just a few hours, so hyper-partisan polarization prevailed at the expense of any sort of common ground on behalf of the public interest.
On the same night before the election, the U.S. Supreme Court also split 5–4 along sharply divided grounds in a separate federal court lawsuit over absentee voting. The focus of that case was all the absentee voters who had not received their ballots despite timely requesting them. The plaintiffs had asked the district court to permit ballots postmarked by Election Day to count, if the local election officials received them during the following week.
During the preliminary injunction hearing, it became apparent that this proposed remedy would not suffice. The administrative backlog in processing absentee ballot requests was so voluminous that thousands of valid voters would not receive their ballots in time even to get them mailed back on Election Day. So the district court crafted a remedy that would permit absentee voters to cast and mail their ballots up to six days after April 7. Although the state’s election officials did not object, the Republican Party did.
By the time the case reached the U.S. Supreme Court, the partisan divide was captured in its caption: Republican National Committee v. Democratic National Committee. When the Court split 5–4, with all Republican-appointed justices in the majority and all Democratic-appointed justices in dissent, it appeared that voting-related litigation was no longer capable of any semblance of nonpartisan neutrality. Citizens United v. Federal Election Commission (2010), involving campaign finance, was similarly 5–4. So too was Shelby County v. Holder (2013), over the preclearance provisions of the Voting Rights Act, and Rucho v. Common Cause (2019), the finally decisive ruling that partisan gerrymandering claims are off-limits to federal courts. Now this. In an obvious echo of Bush v. Gore, the high court itself divided, seemingly by its own partisanship, over what ballots must be counted to preserve the constitutional command of “equal protection” in an election.
Could the legal infrastructure of American democracy be in an any more perilous position heading into the November 2020 presidential election?
The superficially alarming 5–4 split, issued at the accelerated pace of emergency stay motions decided on election eve, once again hid the possibility of a compromise position had there been more time. The Supreme Court majority’s inherently reasonable concern was about ballots cast after Election Day (who wants ballots in the November 3 election to be cast on November 4, 5, 6, or later?), while the dissent was understandably concerned about the disenfranchisement that would occur absent an appropriate remedy. Indeed, the majority shared that concern but was unwilling to let a lower federal court require, at least in the posture of a preliminary injunction, the counting of ballots cast after voting in the election was supposed to be over.
There was a way to reconcile those two reasonable concerns, but in the fast-moving pace of that emergency lawsuit, no one saw it. For military and overseas voters, federal law provides for the federal write-in absentee ballot (FWAB), which allows an eligible voter who has not received the official absentee ballot from the state to send back a generic substitute, so long as the voter casts and mails it by Election Day. If, instead of letting voters cast an absentee ballot after Election Day, the court in the Wisconsin case had ordered the availability of an FWAB equivalent for pandemic-affected voters who had not yet received their official absentee ballots, the district judge could have protected all absentee voters from the disenfranchisement that troubled the Supreme Court dissenters, while simultaneously avoiding the problem that invoked the reversal from the Court’s majority. There was a win-win, but it was not identified in time for that Wisconsin election.
As it turned out, the April 7 state supreme court race ended up a landslide, so there was no need for another round of litigation over the election’s results. Had the race been as close as expected, it surely would have provoked that form of fighting. Thus, it remains a harbinger of what might happen in November if the margin in a presidential battleground is thin and the whole Electoral College hinges on it. We cannot assume that just because the U.S. Supreme Court resolved the scope of one preliminary injunction decree, all possible issues over the voting process in November have been conclusively resolved. Far from it.
In fact, after Wisconsin’s April 7 election, there has been an exponential explosion of election-related lawsuits, the likes of which could not have been predicted pre-COVID, even from all the intensified voting litigation since Bush v. Gore. As the summer of 2020 began, there were pending suits, often more than one, over the procedures for absentee voting in all the battleground states, and then some—Pennsylvania; Michigan; North Carolina; Wisconsin, again; Georgia; Texas; even California. Hardly a state has been immune from a judicial fight over its voting rules, as the state’s election administrators frantically prepare for voting in November.
If, as states attempt to cope with the unprecedented challenges of COVID-affected elections, all those lawsuits can help to improve and clarify the process, and they do so early enough so that state administrators are ready when it comes time to cast ballots in the fall, then despite the often chaotic and disruptive character of it all, that litigation will have served a purpose. But if the explosive litigation leaves election administrators less prepared and more confused, then it will have added yet another layer of burden on a system that is already overly stressed.
And that’s just the pre-election litigation. Consider what might come starting on November 4 if preliminary presidential results on election night are inconclusive. That’s likely, given all the extra absentee ballots that will be cast, despite the incumbent president’s protestations against that particular form of voting. It’s easy to imagine the TV networks declaring one or more of the battleground states too close to call until all the absentee ballots have been counted during the following week, immediately sparking a new set of suits over the eligibility of those votes to be counted. It was just that sort of fighting over absentee ballots cast in Minnesota’s 2008 U.S. Senate race between then incumbent Norm Coleman and then challenger Al Franken that left that Senate seat vacant for months.
Twenty years after Bush v. Gore, America has that precedent to thank for this development, even if the Court intended that case to be a one-time-only affair. Observers of the Coleman-Franken litigation constantly compared Minnesota 2008 to Florida 2000. If something similar happens in the presidential race this year, the comparisons between 2020 and 2000 will be inevitable.
Even worse, there is a way that a dispute over the outcome in 2020 could play out differently than the fight for the presidency two decades earlier. The reason the Court’s decision in Bush v. Gore ended the dispute was because Al Gore decided not to pursue the fight any further. His advisors were urging him to press on, all the way to Congress. But he decided enough was enough.
The hyper-agitated political environment 20 years later makes it unlikely that either major-party presidential candidate would simply accept the result of another 5–4 Supreme Court ruling, this one having the effect of awarding the presidency to the other side. All the acrimony that occurred over the Senate’s decision to let Judge Merrick Garland’s nomination lapse without a hearing would resurface in claims, right or wrong, that a 5–4 ruling from the Court lacks legitimacy deserving respect. There is a real risk that a dispute over the outcome of the 2020 election, unlike 2000, will remain unresolved when Congress convenes on January 6, 2021, to receive the Electoral College votes from the states.
If any pivotal state sends competing Electoral College submissions to Congress—one in favor of Trump and the other in favor of Biden—a deadlock may ensue between the two houses of Congress over what to do. That is what happened in the fight over the 1876 election between Hayes and Tilden. Four states sent Congress conflicting submissions. The Republican-controlled Senate wanted to accept the ones for Hayes, while the Democratic-controlled House wanted to accept the ones for Tilden. That dispute raged on less than 48 hours before Inauguration Day. It took much congressional maneuvering, including some extraordinarily close to the very last minute, and a compromise that ended Reconstruction in the South and thereby abandoned the civil and voting rights of African Americans for another century, for enough Democrats to acquiesce in a Hayes presidency.
It would be another grave danger to the republic if something similar happened in the aftermath of voting in the 2020 election. The scenario most to be feared is the possibility that a state legislature might refuse to accept the count of ballots certified by the state’s election officials or perhaps revised as a result of court proceedings. Something like that was brewing in the Florida legislature before Gore accepted his judicial defeat. But if, for example, legislatures in Arizona, Pennsylvania, and Wisconsin repudiate the officially certified result of the popular vote in those states, then Congress would face two conflicting Electoral College submissions from these contested states.
Although a federal statute was enacted 10 years after the Hayes-Tilden debacle that is supposed to address that possibility, it is a notoriously ambiguous statute, and it is at least conceivable that the Senate and House of Representatives could remain deadlocked in their opposing positions on which candidate won the Electoral College in 2020. The closer that kind of deadlock gets to noon on January 20, 2021, which is the constitutionally mandated time for the inauguration of the election’s congressionally recognized winner, the more dangerous to the republic the stalemate becomes.
The military must give the nuclear codes to someone at noon on that date, and they need to know to whom to give them. The Supreme Court may need to involve itself in a presidential election again, although in an altogether different and even more uncomfortable posture than in 2000.
The 2019 Kentucky governor’s race offers reason for some optimism. With only a 5,000-vote margin in preliminary returns, there was some noise that the legislature might attempt to repudiate the result, simply as an exercise of raw power partisanship. But members of the legislature quickly proclaimed that the will of the voters must be respected, even when it is painful for the losing candidate. Democracy cannot function otherwise.
We can hope that how Kentucky handled its close 2019 gubernatorial election, avoiding a descent into all-out partisan contestation regardless of the results the ballots actually provided, suggests how a similarly close 2020 presidential election would be resolved. Despite all the lawsuits that might be filed in an effort to identify which candidate actually won a close race, those lawsuits do not undermine the legitimacy of elections unless they stray from their essential purpose. The goal of the litigation must always be to determine what the voters themselves actually want. Otherwise, the exercise is not one of popular sovereignty through free and fair elections.
This year, America may face a constitutional crisis far beyond what occurred in 2000. The basic function of holding the election is to identify whom “We the People” want to be our president for the next four years.
As disputed as the 2000 election was, ultimately the nation accepted the pronouncement of the truly razor-thin result in Florida and, with it, Bush’s Electoral College victory. If 2020 ends without an acceptance of defeat and with Congress deadlocked, both democracy and the rule of law will have suffered perhaps irreparable damage. Avoiding that catastrophe must be the nation’s highest priority in conducting the 2020 election.
