Here’s what you need to know about the rules of the game, here and abroad, for resolving contested elections.
Electoral conflicts are inevitable
Formal disputes over election outcomes are common around the globe. Various academic projects regularly recognize numerous countries’ election systems as better-run than those in the United States — and even these regularly find their election results challenged. For example, Germany handled 275 disputes challenging the results of its 2017 legislative election, encompassing both complaints from one of its 299 electoral districts and complaints about the hundreds of seats distributed using proportional representation. In 2018 and 2019, the Supreme Electoral Tribunal of Costa Rica adjudicated 738 disputes about municipal and national elections. And in 2017, after the French National Assembly elections, voters and candidates filed hundreds of disputes, and the Constitutional Council invalidated the results of eight races. But French election results are often canceled and so were not unexpected. The process is orderly; that’s probably part of the reason the V-Dem Institute regards France’s electoral democracy more highly than that of the United States.
The U.S. dispute resolution system is unlike that of any other democracy
In the U.S. system, any disputes over who won a state’s presidential election (and, therefore, its electoral votes) are first handled by that state. If disputes remain, the Constitution and the Electoral Count Act (ECA) charge Congress with deciding the winner. Congress’s role has been largely a formality; it receives, tallies and certifies the states’ electoral votes. Only if Congress deems the results not “regularly given” — in the ECA’s vague language — would they be challenged. That happened in 2005, when congressional Democrats challenged Ohio’s slate of presidential electors, before it again happened in the 2020 elections. Congress is also charged with mediating disputes about its own members’ elections, as with a 2020 dispute over who won an Iowa congressional seat.
This is unusual. According to the International Institute for Democracy and Electoral Assistance, only six other countries have their legislatures verify their own elections. And only the United States channels presidential election disputes through its national legislature.
Several Latin American countries used to have this system, but in the late 20th century, they created independent electoral commissions and courts to resolve disputes. One study finds that doing so made it harder for the legislature and executive branches to conspire to subvert democratic elections and decreased electoral fraud, increasing political stability. Doing so in the United States would require a constitutional amendment and changes to the ECA, as the Constitution explicitly gives each house of Congress the ability to monitor its own elections, while the ECA regulates presidential contests.
The U.S. Electoral Count Act is dangerously vague
The Electoral Count Act was passed after another disputed election. In 1876, several states could not resolve voting disputes. Congress hurriedly created the Hayes-Tilden Commission to decide who won, resulting in the infamous Compromise of 1877 that ended Reconstruction. Despite the ECA, during Florida’s 2000 recount, the Supreme Court was dragged in to mediate a key issue in Bush v. Gore, yet another ad hoc solution to electoral crises.
Congress passed the Electoral Count Act in 1887, a statute that law professor Edward Foley describes as “antiquated,” “opaque” and “impenetrable.” For example, many experts interpret the act as saying that if states certify their results six days before the state selects its electors — known as the “safe harbor” date — then that certified result is conclusive. And yet in 2020, after Pennsylvania and Arizona certified their results by the safe harbor date, congressional Republicans challenged those slates nevertheless, with both objections voted down in each chamber.
Further, in 2020, Trump and others circulated the idea that Vice President Mike Pence could unilaterally alter the results. While Pence and other knowledgeable observers dismissed this theory, the Jan. 6 rioters demanded it nevertheless. In his 2016 book, “Ballot Battles: The History of Disputed Elections in the United States,” Foley discussed this as a potential “national nightmare.”
Little reform in the offing
Democrats in the House and the Senate have proposed wide-ranging election changes, notably the For the People Act, recently filibustered by Senate Republicans. But that wouldn’t update the Electoral Count Act’s murky procedures for mediating election disputes.
Meanwhile, legislatures in such states as Arizona are considering measures to have more authority over electoral results and local election officials. If that happens, those state assemblies could overturn locally certified results and send their amended electoral college votes to Congress. If these slates were submitted before the safe harbor deadline, Congress might not be able to challenge those, even if both the House and the Senate agreed to do so. Although the 2004 and 2020 electoral vote challenges targeted states that had met the deadline, the disputes’ constitutionality never reached the Supreme Court, perhaps because they were voted down both times. But it may reach the court eventually.
Having consistent procedures for resolving election disputes helps protect electoral integrity. Of course, people acting in bad faith can always simply ignore clear procedures; more procedural clarity wouldn’t rule out future political violence. But ambiguities certainly make it easier for anyone intent on subverting elections to make their arguments. The Jan. 6 riot at the Capitol hints at what can go wrong when it’s not clear how to resolve disputes over the transition of power.
Joseph Klaver is a PhD candidate in political science at the University of Michigan studying the institutions that mediate electoral disputes.