Brace for Chaotic Presidential Election Uncertainty to Last Well Into December 20 With widespread early voting and a massive number of mail-in votes expected this year, “Election 20 , Day” is a misnomer. We are unlikely to know the outcome of the November 3 presidential election 6 1 until at least the beginning of December, after mail-in votes are counted and litigated - likely all the way to the Supreme Court. While SCOTUS has been reticent to acknowledge its role in deciding the 2000 Bush v. Gore election, the Trump campaign is gearing up to drag the Court kicking and screaming to confront that precedent and effectively decide the election once again by ordering states to halt the counting of still-pending mail-in votes, which are likely to skew overwhelmingly September Democratic. Below we look at key election dates beyond November 3 and how the fight for the White House is likely to play out. Color: Nov 3: Election Day! Service Unlike most presidential elections, the chances the media calls the race for either candidate on Nov 3 or 4 are virtually zero. Vote counts on election night and in the days immediately following are likely to favor Trump, as in-person votes are typically the first to be certified. But an unusually large number of voters will cast ballots by mail this year - about a third - and most of these are likely to be cast by Democrats (47% vs 11%). Energy Policy Policy Energy Nov 10-28: Statutory deadlines for states to finish counting ballots - litigation begins in earnest Exact deadlines vary by state, with some offering just a week to count and certify all ballots. Hitting these deadlines will be especially difficult this year given the huge influx of mail-in votes and limited manpower. Furthermore, disputed ballots (i.e. those with questions about matching signatures, proper form completion/delivery, etc.) could remain uncounted given limited time to resolve questions over legitimacy. Unencumbered by the same deadlines (because it was a primary), it took six weeks for the New York authorities to determine the winners of two House Democratic congressional races this summer as they struggled with 10 times the normal number of absentee ballots. During this vote-counting and certification window, expect an explosion of litigation from team Trump attempting to halt the counting of mail-in ballots in key swing states as quickly as possible. Procedurally, litigation will begin in state courts as - with the exception of the Bush v. Gore Equal Protection argument (discussed below) - most disputes will be over interpretation of state law, for which state Supreme Courts are the ultimate arbiter. These cases move at lightning speed, often resolving inside of a week or two. Washington D.C Confidential Page 1 / 2 [email protected] Looking at swing state Supreme Courts, GOP judges hold a slim advantage in Wisconsin and Michigan, and a substantial advantage in Florida, while Democrats hold an advantage in Pennsylvania. Litigation has already begun in some instances. The Trump campaign and the 20 Republican National Committee are currently involved in 40 lawsuits in 17 states, challenging 20 recently implemented state provisions that facilitate vote-by-mail amid the ongoing COVID-19 , 6 pandemic. 1 While team Trump’s allegations of past instances of mail-in voting fraud are well documented, convincing the courts that newly passed mail-in vote laws make the vote more susceptible to future widespread fraud are unlikely to be successful. To date, the Trump campaign has struggled to put forth evidence substantiating its claims, and courts are reticent to offer injunctive relief when the September harm complained of is speculative in nature. However, the spectre of SCOTUS’s 2000 Bush v. Gore decision looms large. While the Supreme Court was careful to make clear its decision to halt vote counting in Florida was “limited to the present circumstances,” and the decision has not been cited by the court as precedent since, the Service Trump campaign is poised to test that position by getting 2020 cases before this - more conservative - version of the High Court. The 2000 case held essentially that the use of different standards of counting in different counties violated the Equal Protection Clause. The Trump campaign has used this to argue, essentially, that only the most stringent procedures for counting ballots within a state may govern. While Chief Justice Roberts has been a relatively frequent swing vote, both Roberts and now-Justice Kavanaugh worked as lawyers with the Bush campaign on its legal strategy that Energy Policy Policy Energy culminated in the Bush v. Gore win. Thus a key question is whether SCOTUS’ 2000 decision will be cemented into precedent, a question the High Court has taken great pains to avoid over the past 20 years. Dec 8: Statutory safe harbor deadline for states to resolve disputes over the results. Under federal law (3 U.S.C. § 5), a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within 35 days of Election Day. This includes conclusion of any recounts and litigation on the state level. While failure to meet this deadline triggers a journey down an arcane rabbit hole of rarely used electoral procedure, the bottom line is this date provides an impetus for swift conclusion of election-related litigation. In 2000, the U.S. Supreme Court ruled in Bush v. Gore to halt the Florida recount 34 days following election day. Gore conceded on day 35. Dec 8-13: State Governors or Secretaries of State certify election results. In theory, governors supportive of President Trump could rush to certify the results of the election earlier, even as Democrat-leaning mail-in votes are still being counted. Conversely, a governor could refuse to certify the results, withholding his/her state’s electoral votes. Dec 14. Electoral college meets to formally cast votes for President. If by Dec 14 enough governors fail to certify their states’ results to the extent that neither candidate can reach 270 delegates (the threshold for victory), or if the electoral vote is tied, the election would be decided by the House of Representatives. Crucially, the House would not vote individually but rather by state delegation - where Republicans currently hold a majority (26-23, with PA evenly split). With the vote taking place before new members are inducted on Jan 3, a House determination of the presidency would favor President Trump’s reelection despite a Democratic majority in the chamber. Jan 6. Congress formally certifies the results. Jan 20. Inauguration. The Constitution provides for the new President to be sworn in at noon. Washington D.C Confidential Page 2 / 2 [email protected] .