The following is a symposium contribution from Guy-Uriel Charles (Duke):
First, if the election is close and it comes down to one or a few states, what are the legal issues that will come up that are not currently on our radar screen. I am reminded of the famous Rumsfeldian quip, uttered by Donald Rumsfeld who was the Secretary of Defense and responding to a question about the Iraq War. Rumsfeld stated, “there are known knowns . . . there are known unknows . . . and there are unknown unknowns.” Rumsfeld could have been talking about election litigation. There are some issues that we know we know. For example, we know that if the election comes down to North Carolina or Pennsylvania the counting of absentee ballots received after election day will certainly be one of the issues litigated. There are also some things we know we do not know. For example, we do not know what role the Supreme Court will play in election litigation disputes or how seriously it will take the argument that only state legislatures have the power to change laws dealing with presidential electors. However, I fear that it is the unknown unknowns, as Rumsfeld went on to say in probably one of the most understated utterances in history “that tends to be the difficult ones.” We can prepare for the known knowns and the known unknows. I am thinking about the unknown unknowns; the first issues that will surprise us and that we wish we had known.
Second, if you make it easy for people to turnout and vote, they will. We are two days away from one of the most, if not the most, consequential elections in my lifetime, taking place within one of the most polarized political context that we have seen in a long time, in the midst of a once-in-a century (if we’re lucky) pandemic, shadowed by the pestilence of systemic racial subordination and yet a significant percentage of the electorate has already voted. According to Michael McDonald’s elect project, more than 90 million people have already registered their preferences. More than 34 million have done so in person in states that permit early voting and almost 60 million have mailed-in their ballots. Approximately 138 million people voted in the 2016 presidential election. The second thing on my mind is that notwithstanding the significant potential obstacles, many people have worked really hard to make is possible for people to exercise their right to vote.
Third, I worry whether the losing side, Republicans or Democrats, will accept the results. President Trump has stated that he can only lose if the Democrats steal the election. This is of course not true. What will the country look like once we have a declared winner? That’s the third thing on my mind.