By Tom Hals
The 2020 U.S. presidential election could be the most closely contested in recent memory due to a deeply divided electorate and the possibility that President Donald Trump will challenge widely used mail-in ballots, claiming they are fraudulent.
Some election law experts are concerned the combination of factors could lead to a crisis in which both political parties claim to have won the same state, a phenomenon known as “dueling electors.”
Below are details of how that might play out.
What are electors?
The U.S. president is selected by 538 electors, known as the electoral college, rather than the popular vote. Electors are apportioned among the states based on population and the popular vote in each state typically determines which candidate receives that state’s electors.
The Constitution and the 1887 Electoral Count Act govern the counting of electoral votes and any related disputes. The electors will meet on Dec. 14 to cast their votes which are then counted by Congress on Jan. 6 in a process overseen by Vice President Mike Pence in his role as president of the Senate.
What are dueling electors?
States with close contests between Republican Trump and his Democratic rival Joe Biden could produce competing slates of electors, one certified by the governors and the other by the legislature.
The risk of this happening is heightened in the battleground states of Michigan, North Carolina, Pennsylvania and Wisconsin, which have Democratic governors and Republican-controlled legislatures.
Some election law experts are concerned that an unprecedented volume of mailed-in votes and legal challenges will delay the outcome of the election for weeks, creating an extended period of uncertainty.
Trump has repeatedly said the election is rigged and made unfounded attacks on mail-in voting, which tends to favor Democrats.
If early returns show a Trump lead, experts say the president could press Republican-controlled legislatures to appoint electors favorable to him, claiming the initial vote count reflects the true outcome.
Governors in those same states could end up backing a separate slate of electors pledged to Biden if the final count showed the Democratic candidate had won.
Both sets of electors would meet and vote on Dec. 14 and the competing results would be sent to Congress.
Which set of electors would prevail?
Both chambers could agree to accept one slate of electors, which would almost certainly put the matter to rest.
The chambers could also split, which is more likely if the Republicans retain control of the Senate and Democrats hold onto their House majority.
If lawmakers cannot agree on a set of electors, the country will find itself in unchartered territory.
The Electoral Count Act, often described by academics as “unintelligible,” seems to favor the slate of electors certified by the state’s governor, according to Ned Foley, a professor at Ohio State University Moritz College of Law.
But Foley notes that some scholars and an analysis by the Congressional Research Service have rejected that conclusion.
Academics have sketched out several scenarios. Under one, Pence as president of the Senate, could throw out both sets of electors for a state. Another contemplates that the House of Representatives would end up choosing between Biden and Trump. There is even a scenario in which the Speaker of the House, currently Democrat Nancy Pelosi, could become the acting president.
Would the Supreme Court get involved?
The Supreme Court may be called upon to interpret the Electoral College Act to break the deadlock.
A Supreme Court ruling helped resolve the 2000 election in favor of George Bush, but that case was about a recount in Florida and the decision was reached before electors had met to cast the votes.
“I think there will be legal challenges,” said Jessica Levinson, the director of Loyola Law School’s Public Service Institute. “But I could see a court saying this would really be better left up to Congress.”
Has this happened before?
In 1876, dueling electors in three states deadlocked the election until a deal was brokered days before Inauguration Day.
The dispute was resolved after Republican Rutherford B. Hayes became president in exchange for withdrawing U.S. troops left over from the Civil War from Southern states.
“I hope it’s a very low probability event but 1876 is a reminder that it is not zero and we have come very close to falling over that cliff in our history,” Foley said.
(Reporting by Tom Hals in Wilmington, Delaware; Editing by Noeleen Walder and Aurora Ellis)