It’s certainly possible that we’ll have a very, very close presidential election on Tuesday night . . . and Wednesday, and beyond. And, yup, we’re already getting the scene-setter stories about hordes of partisan lawyers getting pre-deployed to fight it out.
So here’s a first draft of what should be considered kosher and what should be considered beyond the pale when it comes to contesting presidential election results.
First things first: Elections are held under rules. The main rule of concern here is that the game is getting a majority in the electoral college, not in the national vote. All that matters is which candidate reached 270 electoral votes. The rest is just spin, and reporters and the rest of us shouldn’t pay much attention to it.
Second: It’s absolutely legitimate for each candidate to fight through normal processes, including the courts, to get what he considers a fair count of the vote. That includes, I suppose, attempting to exclude votes on technicalities, although I’ll agree that it’s pretty ugly to try to win the presidency on such arguments. Still, the general point is that the votes should be counted as correctly as possible under the standard procedures each state lays down, and there’s nothing wrong with pressing for recounts as allowed by law, or with including or excluding ballots as allowed by law. And, since sometimes what exactly the law says is unclear, that includes seeking court intervention.
It is not legitimate, however, for the losing side in a very close contest to attempt to pressure the actual electors. Not that such pressure is likely to be successful, of course. But everyone should treat the actual vote of the electoral college as automatically flowing from the state votes.
In the extremely unlikely event of an electoral college tie, and assuming that the members of the House of the party with the votes to win (which, this time around, will almost certainly be the Republicans) all say that they will stick with their party, that should be enough. Everyone should treat the election as a Republican victory, with the actual House vote a mere technicality, just as everyone treats a normal election as finished once the votes are counted, rather than waiting on the electors to vote.
Finally, while appeals through the courts are perfectly legitimate, actions by a state legislature to overturn the vote (including in cases in which the legislature happens to disagree with the courts) are a very bad business indeed, and just about the most undemocratic and destabilizing thing I can imagine.
Overall, the general guideline is that the constitutional process, as it has been practiced for two centuries, should be accepted even if it seems unfair or even undemocratic — without attempting to exploit potential loopholes.
With any luck, whoever wins Tuesday will do so by a solid margin, so that none of this will be relevant. And there are grey areas . . . while I think appeals to the courts in order to get a fair count are fine, it’s possible to imagine irresponsible appeals, and even irresponsible courts, that might be more problematic.
Overall, however, I think these are the big issues at play, and some general guidelines for how candidates, voters, and reporters should think about all those hordes of lawyers and what they may soon be up to if we’re not lucky.