This extraordinary, anxiety-inducing election will finally and mercifully be over in just a matter of hours — unless, infernally, it’s not.
There are scenarios, unlikely but not impossible, that could create a muddled outcome, possibly involving voter intimidation, recounts, disputed ballots, faithless electors and (let's just put it out there) a full constitutional crisis.
The electoral college typically exaggerates rather than overturns the outcome of the popular vote in a presidential election, but not always. The presidential race could potentially hinge on one, or just a few, state outcomes. Control of the Senate could plausibly come down to a single race.
“We’re all going to go on vacation in another 36 hours. I hope vacation,” Theodore Olson, the prominent Republican attorney who represented George W. Bush before the U.S. Supreme Court during the 2000 Florida recount battle, said Monday afternoon.
“If you really want to make your head spin, think about two close states. That’s just nuts. That’s Florida squared,” said Mike Carvin, who argued Bush's case before the Florida Supreme Court.
Olson and Carvin were among the partisan lawyers who converged on Tallahassee, the state capital, as soon as everyone realized that Bush and Vice President Al Gore were virtually tied, with Bush holding an initial lead of fewer than 1,800 votes, even as reports of voting and ballot anomalies abounded and Florida’s electoral votes served as the difference between victory and defeat for either candidate.
Heather Gerken, a professor of law at Yale Law School, said a recount is more likely in the Senate races than in the presidential race. If there is a disputed outcome in the presidential race, the Democrats would have a clear advantage simply in terms of lawyers standing by, ready to be deployed, she said.
“The Democrats have a standing army,” she said. “It's a highly professional system. The Trump people, as far as I can tell, don’t have that. If you want a recount, you have to have good evidence, you have to have good lawyers, and you have to be prepared in advance.”
The Florida recount lasted five weeks and ended only when the U.S. Supreme Court ordered vote-counting stopped by a 5-to-4 margin and effectively awarded the presidency to Bush. That kind of recount battle is one of the many ways the presidential election could have an uncertain outcome.
For example, Clinton and Trump could be tied at 269 in electoral votes. That would throw the election to the House of Representatives, where each state delegation has one vote.
“Wyoming gets one vote and California gets one vote, and if you do the math, that would be a very good scenario for Trump,” Carvin said.
The most confounding scenario involves the electoral college and “faithless electors.” The Constitution created the electoral college as an intermediate step in the election of a president; when people vote for a candidate, they are really voting for electors who are pledged to support that candidate. The Constitution does not mandate that these electors abide by their pledges, though some states have passed laws trying to prevent the breaking of the pledge.
Faithless electors have been extremely rare and have never overturned the voters' choice, but election-law experts warn that this issue has never been fully litigated and could lead to a disputed outcome.
A presidential election, though nationally consequential, falls under the “All Politics Is Local” rule. Under the Constitution, a president is chosen through 51 separate elections among the states and the District of Columbia. These elections are typically run by county election boards and often lightly trained volunteers in precincts. The voting machines and the laws governing elections vary from jurisdiction to jurisdiction.
“It's a point in time where tens of millions of people, all on the same day, are showing up to vote. The bureaucratic infrastructure you need to mount an election is massive,” said Michael Morley, an expert in election law at Barry University School of Law in Orlando. “These are people who are taking time out of their lives, who undergo some training, they’re sometimes put in a high-pressure situation, and mistakes are made.”
Olson echoed that, saying of the U.S. election system: “I think it's vastly, overwhelmingly clean and fair and decent and honest. But there are people involved in the process, so you can have innocent errors, and you can also have capricious errors.”
Jonathan Turley, a professor of constitutional law at George Washington University, said changes in election procedures and the widespread adoption of electronic voting machines makes it unlikely that we'll see a repeat of Florida's 2000 fiasco, in which there was furious debate over “hanging chads” and “pregnant chads” — partially perforated or dimpled paper ballots. But Turley said the electronic machines introduce their own set of issues.
“With the hanging chads, there was a physical paper to observe and debate as to its meaning. With these electronic systems, you simply don’t have that, so questions about hacking and other types of malfeasance tend to be magnified in the views of many voters,” Turley said. “With all the talk about rigged elections, the new electronic systems are likely to fuel rather than reduce those concerns.”