Ned Foley Recap of OSU Event: Trump v. Biden: How Would It Compare to Bush v. Gore?

Ned Foley has written this guest post:

         The U.S. Supreme Court already has decided RNC v. DNC this year, and it’s only May.  What will Trump v. Biden look like if the November election is close enough to present vote-counting issues worth fighting about.

            That, in essence, was the subject of a conference held by Ohio State University’s Election Law program on Monday, May 4—a conference conducted by video, of course, given the pandemic.

            The discussion was divided into three 90-minute sessions, each devoted to a distinct time period—with the possibility of a disputed presidential election becoming more problematic as the dispute moved from one time period to the next: (1) from Election Day, November 3, to the vote of the Electoral College, December 14; (2) from the vote of the Electoral College, December 14, to the counting of Electoral College votes in Congress, on January 6; and (3) from January 6 to Inauguration Day, January 20.  For each time period, the discussion was anchored by a series of hypothetical scenarios that conceivably could occur, each of which would raise difficult questions under the Constitution and applicable federal laws.

            While the organizers and participants in the discussion are still contemplating what lessons to draw and what possible next steps to take—all with the goal of putting the nation’s electoral process in a better position to avoid this kind of dispute, or at least handle it successfully if it should occur—three main takeaways began to emerge during the conference, one associated with each of the three time periods that were considered.

From November 3 to December 14: Accept What SCOTUS Decides

         Much of the first 90 minutes was devoted to the possibility that November might involve a repeat of what plagued Wisconsin’s primary in April: thousands of eligible voters properly requesting an absentee ballot but never receiving it in sufficient time to return it by the statutory deadline of the close of the polls on Election Day. The twist in the hypothetical was that the problem this time might happen in Pennsylvania, not Wisconsin, and that the state’s supreme court might deviate from the statutory deadline in order to protect voters from wrongful disenfranchisement.  With the hypothetical assuming that this state court remedy might validate enough ballots in Philadelphia to make Biden the statewide winner, the question was: if the GOP goes to federal court in an attempt to block the state court remedy, which side should win?

            Perhaps most interesting about the discussion was the shared perception that under the relevant federal constitutional principles—involving Article II, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and including the precedent established in Bush v. Gore itself—it would be difficult, if not impossible, to identify a platonically correct answer to the legal questions that this kind of case would present.  It was thus correspondingly easy to imagine the U.S. Supreme Court justices, when and if the case got to them, dividing over these legal questions, just as they divided 5-4 in the recent RNC v. DNC decision out of Wisconsin.  There was some sentiment among the discussants that, as legal scholars, they should do their best to answer these tricky legal questions ahead of time, before a real dispute might occur over the results of the November 3 vote.  All agreed that attempting to answer such legal questions behind the proverbial “veil of ignorance” was most conducive to generating a genuinely nonpartisan answer, before the scholars themselves become psychologically invested in the outcome of an actually pending dispute.  Even so, the discussants largely agreed that it would be necessary to know more details than the hypothetical scenario had included, and therefore at least at the moment there was too much ignorance behind the veil to make assessment of the relevant legal issues worthwhile.  The applicable doctrine under the Court’s existing jurisprudence was just too fact-dependent. 

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            Thus, absent further development of the relevant hypothetical scenario (and maybe not even then), all that was left was general principles that—while sound in the abstract—lacked sufficient purchase to dictate clearly how any particular case should be resolved.  The implication was, and here there seemed to be general agreement (although perhaps there needs to be further consideration of this particular point), that it would become unavoidably obligatory to accept the U.S. Supreme Court’s decision in the case, even if 5-4 again, and whether or not one agreed with the 5 or the 4. Among this group of lawyers, at least, the “rule of law” value of accepting the jurisdiction of the U.S. Supreme Court to decide the kind of questions that arose in Bush v. Gore, and might arise again in a Trump v. Biden dispute over absentee ballots, required respecting the right of the Court to decide the case according to its own view of the applicable constitutional precedents and principles.  Even when pressed on the point that acceptance of the Court might mean acceptance of discriminatory disenfranchisement—Philadelphia voters unable to cast ballots in circumstances similar to voters elsewhere in the state—and even with the possibility that this kind of discrimination might make a difference in the entire presidential election, the lawyers said that, while they wouldn’t like the result, they would be prepared to accept it if it was the product of a U.S. Supreme Court decision squarely within the Court’s jurisdiction.

From December 14 to January 6: Clarify Now the Congressional Tiebreaker!

            The circumstances shifted considerably once the conversation turned to the second 90-minute session and the next phase of a potential dispute.

            In this context, the issues involved what Congress was supposed to do if it turned out that, for whatever reason, a particular state’s ballot-counting dispute had generated two conflicting submissions of Electoral College votes—one favoring Trump, and the other favoring Biden—being sent to Congress.  Here, the general sense was that there really was no role for the U.S. Supreme Court to play.  It is hard to imagine a court, even the U.S. Supreme Court, ordering Congress how to count Electoral College votes when Congress meets for that purpose in a special joint session under the Twelfth Amendment.  Thus, Congress is essentially on its own under the Constitution, and the fear is that Congress might be deadlocked if the Senate wants to go one way and the House of Representatives the other (as was true for the disputed Hayes-Tilden election of 1876).

            But Congress has enacted a statute designed to handle this type of situation: the Electoral Count Act.  Although the antiquated statute has its interpretative challenges (to put it mildly), the easiest way to read its text is to see it as establishing that the governor of a state plays the tiebreaker role in the event that the Senate and House split over which of two (or more) conflicting sets of Electoral College votes from the same state to count.  There was a widely shared (though not unanimous) consensus among discussants that it would be useful for legal scholars to work up now an explanation why the governor-as-tiebreaker rule is, generally speaking, the correct interpretation of the statute and thus the rule that Congress should follow if it finds itself facing this kind of deadlocked situation.

            The point was made, and largely agreed to, that the legal issue involving the interpretation of the Electoral Count Act is of a very different character than the kinds of questions that could confront a court at the previous stage of the ballot-counting process, before the Electoral College meets on December 14.  Not only is there the question of whether a court could even have jurisdiction at this stage of process, but the problem of ascertaining the meaning of the Electoral Count Act does not involve the highly fact-dependent inquiry of applying Due Process, Equal Protection, or other constitutional precedents and principles.  Instead, this issue is mostly confined to parsing statutory text, and perhaps relevant legislative history.  As such, it is much better suited for the kind of “veil of ignorance” inquiry that does not depend on particular factual details.  To be sure, perhaps the best that can be done ahead of time, behind the veil of ignorance, is to establish a strong general presumption in favor of the governor as tiebreaker—recognizing that, like all presumptions (even strong ones) it can be overcome in particular circumstances if the facts truly warrant.  Still, there is an advantage in establishing the presumption ahead of time.  Moreover, the “veil of ignorance” idea is appropriate in this particular context because, in advance of ballots being cast in November, it is equally possible to imagine that the governor who plays the tiebreaking role could be in a blue or red state.

From January 6 to January 20: The Imperative of an Answer on Inauguration Day

            As the discussion envisioned a dispute lasting all the way to January 20, the sense of the situation became understandably more dire.  There was a strong impression that at this point the U.S. Supreme Court would need to step in, one way or another, to prevent the possibility of two simultaneous Inauguration ceremonies on January 20, which the country simply could not handle.  Exactly how to frame the case so that it would fall within the Court’s jurisdiction was not abundantly clear, but discussants voiced at least guarded confidence that something could be devised that would work for the purpose.

            Two other aspects of this third session stood out.  First was the distinct impression that once the two chambers of Congress ended up on the same page, whether by virtue of the governor-as-tiebreaker rule as previously discussed or otherwise, then there was no independent power under the Constitution for the Vice President of the United States, as President of the Senate, to contradict the bicameral will of Congress as a whole (despite the possibility of a strained reading of the constitutional text supporting a contrary argument).  There was somewhat less certainty on what exactly would happen if the Vice President attempted to contradict a unified Congress in this way.  Perhaps that was one of those situations in which U.S. Supreme Court intervention would be necessary to referee the constitutional conflict.  Nonetheless, on this point there appeared to be general agreement that the correct resolution would be for Congress, and not the Vice President, to prevail.

            Second, as the last 90-minute session came to a close, there was some discussion of what might happen if an incumbent President attempted to use Commander-in-Chief powers shortly before January 20 in the hope of staying in office beyond the constitutionally designated end of the term at noon on that day.  Among at least some of the election law scholars participating, this particular scenario seemed unfathomable because on this point the Constitution is absolutely clear, and whatever military powers an incumbent president might exercise, those powers come to an end when the clock strikes noon on January 20.  Consequently, if Congress has determined that a new president-elect is to begin a term at noon that day, no constitutional authority exists for any kind of holdover status, and presumably the military will act accordingly. But as the discussion terminated, at least some dissensus apparently lingered on this important point, based largely on expertise rooted in the law of emergency presidential powers. Thus, this particular sub-topic might be one worthy of more discussion and clarification.

            Other points besides these major ones arose during the day-long conversation and might benefit from more attention.  There also needs to be more opportunity for reflection among all the participants upon what should be the takeaways from the event. But for now, these big picture impressions are among the main ones. 

            Finally, no one participating in the day’s discussion would disagree with the proverbial “election administrator’s prayer” specifically invoked early on: “Please God, let the election not be close.”  But of course the whole point of the day was to prepare for the contingency that this prayer might not be answered.  Thus, it would seem that there is still some more work to do on exactly what (and perhaps how extensive) that preparation should be.

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