Column: The presidential election won’t be over on election night. Here’s what can go wrong after that | Opinion
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Column: The presidential election won’t be over on election night. Here’s what can go wrong after that | Opinion

WASHINGTON — The presidential election is still too close to call, but here are three predictions you can take to the bank:

First, we don’t know who won on election night. Three potentially crucial states – Arizona, Pennsylvania and Wisconsin – are notoriously slow to count. A winner may not emerge before the end of the week.

Second, regardless of who wins, Donald Trump will charge that the vote was rigged. He made that claim in 2020, when he lost decisively to Joe Biden. He claimed (again without evidence) that he was robbed of popular votes in 2016, despite winning the election. He has already charged that Democrats will cheat this year. “That’s the only way they’re going to win,” he argued.

Third, if Trump loses, he will challenge the result in court, just as he did in 2020. “It’s not over on Election Day; it’s over on Inauguration Day,” Trump campaign manager Chris LaCivita said earlier this year. So get ready for long and bitter legal battles that could end up in the Supreme Court with its pro-Trump majority.

We’ve been here before. Four years ago, Trump tried to undo Biden’s election with a series of legal challenges that failed. He asked Republican state lawmakers to overturn the results and demanded that then-Vice President Mike Pence block the electoral vote count. All declined. A mob of angry, misguided Trump supporters tried to stop the process by invading the Capitol on January 6, 2021; it also failed.

Democracy’s guardrails held — and legal scholars say the guardrails are a little stronger now.

“I’m very confident that the candidate who wins on November 5th will be inaugurated on January 20th,” said Justin Levitt, who teaches election law at Loyola Law School in LA. But a lot can happen between these two dates, he warned.

“There could be litigation. There could be delays. There will be a lot of misinformation, some of it spread on purpose,” he said. “There is real potential for unrest, maybe even violence.”

Here are four scenarios where a close election can run into trouble:

Ask the courts to decide

“There is always a risk of another Bush v. Gore,” Rick Hasen of the UCLA Law School wrote recently, referring to the 2000 Supreme Court decision that decided that year’s presidential race between George W. Bush and Al Gore. “If the election comes down to a few thousand votes or less in a state that is crucial to an Electoral College victory, then we expect both sides to litigate as hard as they can.”

In Pennsylvania, for example, Republicans filed a lawsuit complaining that the state’s rules for accepting absentee ballots that arrive with small errors, such as a missing date on the envelope, are too lenient. The state’s Supreme Court left it up to the state’s 67 counties to decide how the ballots would be handled.

If those ballots could sway the election, the Trump campaign could argue that it’s unfair for counties to adopt different rules. A similar issue prompted the Supreme Court to act in Bush v. Gore.

Republicans have already filed more than 100 lawsuits challenging election rules in several states to improve their chances after Election Day.

Refuses to certify results

What if local officials refuse to certify election results they don’t like?

Most legal scholars say courts are almost certain to strike down these attempts — but they could still lead to delays, legal battles and potential unrest.

The once-murky issue of certification became more widely known after Georgia’s Republican-led Board of Elections issued new rules requiring county officials to investigate potential irregularities before certifying results.

Certification has traditionally been an administrative measure where election boards merely confirm that the compiled results agree with what the precincts have reported. Investigating allegations of impropriety or fraud is up to law enforcement agencies, not election boards.

In several counties around the country, pro-Trump election officials have briefly refused to certify election results, but courts have uniformly ruled against them. Two Georgia courts have already ruled the state election board’s new rules invalid.

“Certification is not likely to cause a (constitutional) crisis,” said Edward Foley, a leading election law expert at Ohio State University. “The courts will deal with it as they already do.”

The danger of violence

But all these challenges increase the prospect of violence.

On January 6, 2021, Trump told his followers, “If you don’t fight like hell, you won’t have a country anymore.”

This year, he has revived that warning, telling supporters that the stakes of the election are existential — literally. Last month, in Wisconsin, he told a rally that if he doesn’t win, migrants will “walk into your kitchen. They will cut your throat.”

“You won’t have a country anymore,” he said again.

Violence is always possible, even likely. Trump has already been the target of two assassination attempts. But law enforcement has spent four years preparing to protect polling places, tabulation centers, election officials and judges.

Detroit’s tabulation center, which Trump claimed (without evidence) was a hotbed of fraud, has been outfitted with bulletproof glass. Maricopa County, Arizona, where election officials have been attacked by pro-Trump revelers, is placing snipers on rooftops. The US Capitol Police has been working to make sure that January 6 cannot happen again.

In the end, election law scholars say violence need not derail the outcome.

“I worry about that,” Levitt said. “We live in a climate where some people consider threats of violence to be an acceptable tactic. … But it will not affect the outcome of the election any more than it did on January 6.”

Congress gets the last word – again

According to the constitution, Congress formally counts the electoral votes on January 6. The normally ceremonial process nearly went off the rails in 2021, when Trump urged Republicans to block legitimately elected Biden electors from swing states. Two-thirds of House Republicans supported the measure, but Democrats and moderate Republicans repealed it.

That scenario is less likely to happen again, thanks to a law Congress passed in 2022 that makes it harder to challenge votes and makes clear that the vice president has no power to control the outcome.

Still, if one-fifth of the members of each house oppose a state’s electoral votes, both houses must vote to accept or reject them. If both chambers have GOP majorities, the outcome could come down to a handful of moderate Republicans like Sens. Susan Collins of Maine and Lisa Murkowski of Alaska.

There’s also a wildcard in the list of potential nightmares: What if the vote is tied, 269 to 269?

In that case, the House of Representatives would choose the next president under a rule that would favor Republicans. Instead of a normal vote by individual members of the House, each state’s House delegation would get one vote — meaning California and North Dakota would get equal weight. In the current House, 26 states have mostly Republican House members; only 22, including California’s, are dominated by Democrats. (Two states are evenly split.)

A tie hasn’t happened since 1800, when Thomas Jefferson tied with Aaron Burr. (Jefferson won the round.) Polymarket, a prediction market, puts the odds of a draw this year at 4%.

Disinformation will remain a danger

This is not a “both sides” issue. Only one party has told its supporters that if it loses, the only possible reason will be that the election was stolen.

It doesn’t seem to matter if the challenges are reasonable. In 2020, they weren’t, as evidenced by Trump’s long string of losses in the courts. But polls this month have shown that most GOP voters believe voter fraud is likely to occur this year even though no significant cases have been proven in decades.

Claiming that every election is rigged is not only part of Trump’s political message; it has become part of his business model.

Last time, he raised more than $250 million after Election Day with his demands. Only $13 million of those donations funded legal efforts to reverse the outcome. The rest went into Trump’s political coffers, giving him a head start on his next campaign.

And the disinformation Trump has cultivated won’t go away after Inauguration Day. He has made bitter post-election battles an enduring feature of American politics.

“It’s deeply unhealthy for democracy,” Levitt said. “It’s a long-term cancer of the system.”