U.S. election officials continued to count ballots Wednesday, and in some states tallying may continue into next week, but it is nevertheless likely that media outlets will project a winner of the contest by Friday at the latest.
Depending on how close key state contests are, however, the losing campaign will have legal recourse, engaging in court battles over whether some ballots should be made invalid or whether others should be added to the count.
“Now we’re into this long overtime where we can expect a huge amount of litigation,” James Gardner, election-law expert at the University at Buffalo School of Law said in an interview.
The Trump campaign, for instance, has already announced plans to request a recount in Wisconsin, where the president trails former Vice President Biden by just more than 20,000 votes. The Trump camp also said it filed suit in Michigan court to halt counting of votes in that state, where Trump is about 45,000 votes behind, according to the Associated Press.
Federal election law stipulates three important deadlines by which these disputes need to be resolved and state election results must be completed. On Dec. 8, states are supposed to send election results to the Archivist of the United States, and on Dec. 14 the resulting Electoral College delegations are to cast their votes. Finally, on January 6, a joint session of the new Congress will meet to count electoral votes and declare the results.
“If a state cannot complete it’s counting before those dates start looming, then there are various maneuvers that you can imagine taking place that would really throw tremendous complexity and turmoil into the process,” Richard Pildes, a constitutional-law scholar at New York University, told MarketWatch in an interview last month.
If the result of a state’s voting remains in dispute by the time the Electoral College meets, state legislatures and governors could become key actors. Federal law dictates that if a state election has “failed,” then state legislatures can step in and choose a slate of electors to vote for its candidate of choice. Pennsylvania, Florida, Wisconsin, Michigan and North Carolina all have legislatures controlled by the Republican Party.
But in such a scenario, it is ultimately the responsibility of the new Congress, which takes office on Jan. 3, to decide whether to certify a particular slate of electors. “Basically the rule is that if both houses of Congress agree to count or reject a state’s electors, they have the power to do that,” Pildes said.
If the two chambers of Congress can’t agree, then one reading of the pertinent federal law, the Electoral Count Act of 1887, says that the state “executive,” which may be interpreted as the governor of the state, would decide who the real electors are. Pennsylvania, Wisconsin, Michigan and North Carolina all have Democratic governors.
But the law is vague in its language and open to interpretations that could even lead to multiple quasi-legitimate claimants to the presidency.
There are several legal disputes percolating in addition to those in Wisconsin and Michigan that could potentially threaten states’ ability to come to an official count. Republicans on social media are furious that the AP has already called Arizona for Biden, and are alleging that the use of sharpie pens have led to invalidated ballots because those pens bleed through to the other side of the ballot.
But the Maricopa County Elections Department has said that it actually encourages the use of sharpie pens, so that the ink doesn’t smudge. “New offset columns on the ballots means bleed through won’t impact your vote,” it said on Twitter Tuesday.
Left-leaning groups, meanwhile, are crying foul at the Post Office, which disregarded an order by U.S. District Judge Emmet G. Sullivan of the District of Columbia to sweep 12 postal processing facilities that cover 15 states for ballots in order to get ballots to election officials on time.
“We know yesterday that if the sweeps were doing their job, mail that was identified as ballots and were in the system should have been pulled out and delivered, and it may be that affects what we see as the scores,” said Allison Zieve, an attorney representing the NAACP told the Washington Post.
Meanwhile, election watchers in Pennsylvania are expecting there to be litigation over a state supreme court ruling that ordered state officials to accept ballots that arrive until Friday, as long as they were mailed by Election Day.
With the Biden campaign leading in enough states to get him to the 270 electoral-vote threshold needed to win the presidency, the onus will be on the Trump campaign to convince state and federal courts that already counted ballots should be invalidated.
“What I have seen from the Trump campaign for months already and in a pattern that will continue, is trying to come up with every conceivable argument against the counting of votes,” the University at Buffalo’s Gardner said, adding that his lawyers will continue to be creative in this endeavor. “There’s no predicting what arguments can be made.”
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