Rick Pildes ’79, a constitutional law professor at New York University, is a leading scholar of election law and legal issues affecting democracy. He is also appearing regularly on CNN as an expert on voting and elections throughout the fall.
Pildes spoke with PAW’s senior writer, Mark F. Bernstein ’83, about possible legal challenges to the upcoming election and how to prevent them. Later, PAW spoke again with Pildes about Barton Gellman ’82’s Atlantic article, “The Election That Could Break America.”
What are the biggest legal challenges likely to be?
I think the biggest risk to the election spinning out of control is if there is a close election in several critical states, but there are also hundreds of thousands of absentee ballots in those states that still aren’t counted on election night. If those late-counted ballots appear to change the outcome of the election, we could have an explosive situation. Whichever candidate starts out ahead but sees his lead eroding after election night is likely to claim that the count is being manipulated, and their partisan allies will rally to that cause. Many people, encouraged by partisan actors and fueled by social media, will be extremely quick to see sinister things going on behind the scenes. That would be very dangerous and destabilizing.
You have written that the legitimacy of voting by mail has largely been settled. Can you explain why?
I know that’s a surprising claim for people to hear, but President Trump, the administration, and the Trump campaign have all said that absentee voting is legitimate. Their criticism is not against absentee voting; it is against what the president calls universal mail-in voting. The distinction is that with absentee voting, the voter has to apply to receive a ballot. With universal mail-in voting, the state automatically mails out absentee ballots to everyone on the voter rolls. The difference is significant because the overwhelming form of mail-in voting that people will use this fall is absentee voting, which the president has endorsed. Only eight states have universal mail-in voting, and four of them have been using that system for years without objection.
Aren’t some people arguing, though, that people should be required to vote in person if they can do so and that widespread absentee voting invites fraud?
This issue has become highly politicized, so people are processing it in partisan terms. What we’re seeing is that Republicans are much less likely to say they will vote by mail and more likely to say they will vote in person. For Democrats, it’s the opposite. It gets hard to communicate to the public in a way that penetrates those partisan biases. Nevertheless, there are good reasons for as many people as possible to vote in person. Having a large Election Day vote will help ensure that we have results that are known on election night and broadly accepted.
What can voters do?
There has been so much attention on giving people the option of voting absentee that I think we’re at risk of not getting the message out about how important it is for people to vote in person if they possibly can. Given the pandemic, it’s important that people have the option of voting absentee, but we also know that there are a number of problems that are almost inevitable with absentee voting. Will ballots actually get delivered in time to people who request them? Will ballots that are mailed back be received by the legal deadline? We will almost certainly have an unprecedented level of absentee voting, which means that the U.S. Postal Service will be overwhelmed.
Historically, we also know that absentee ballots are rejected at significant rates. People who are voting absentee for the first time are particularly likely to have their ballots rejected. Absentee voting is a more complicated process than in-person voting, and usually there is no one present to correct you if you make a mistake in completing your ballot. During the primaries, we’ve seen that some places have rejection rates of 10 percent or higher for mail-in votes. Traditionally, the rejection rate for absentee ballots is closer to 3 or 4 percent. In a typical election, where 5 to 10 percent of people vote absentee, a rejection rate of 3 or 4 percent is not likely to affect the outcome of the race. But if you have 60 percent of people voting absentee and 4 percent of those ballots are rejected, and the election is close, that becomes a problem.
The message needs to shift from ensuring that people have the right to vote absentee to encouraging people to vote in person so long as they can do so reasonably safely. Dr. [Anthony] Fauci and others have said that voting in person is safe [for most people] if they take precautions such as wearing a mask and keeping physically distant from others.
If you do vote absentee, request your ballot as early as possible. Return it without using the mail, if you can. Many states have official drop boxes where you can deposit your ballot. You can also deliver your ballot to a poll worker in person on Election Day. If you do return your ballot by mail, absolutely mail it as early as possible. Don’t procrastinate.
What legal challenges could be made after Election Day?
The Electoral Count Act of 1887 sets the date by which states must certify their official election results. In this election cycle, that date is Dec. 8. The law also states that the Electoral College must meet to select the president six days later, or Dec. 14.
Florida Sen. Marco Rubio has introduced legislation to move those dates back until the beginning of January, to give states time to complete their vote counts without being rushed. The Electoral Count Act was enacted in a time when transportation and communication were much slower, but there is no reason today why the vote certification and meeting of the Electoral College have to be so early. They could be moved later and still allow Congress to certify the winner before the presidential inauguration, which is fixed in the Constitution for Jan. 20 and cannot be changed. That shouldn’t be a partisan or controversial issue, but it is not clear if Congress will act.
What happens if states have not finished counting all their votes by Dec. 8?
That is the ultimate nightmare scenario. Let’s say there are disputes about the final count in certain states — how absentee ballots have been counted, for example, or whether a state has properly determined that signatures on those ballots are valid. Let’s say the courts rule that either Biden or Trump has won the state and is entitled to its electoral votes, but the losing side convinces themselves that the counting has been rigged. If they have control of the state government, they could choose a competing slate of electors, and in that case you would have two different sets of electors, both claiming the right to cast that state’s vote in the Electoral College. The new Congress, the one that takes office next January, would then have to decide which slate of electors to accept. This has happened only once before, in the highly contested election of 1876, when Samuel Tilden won the popular vote in several Southern states but Congress voted to accept a different set of electors pledged to the Republican, Rutherford Hayes.
We don’t want to get anywhere near that situation. Because this has happened only once before, there is not a lot of legal precedent and many important questions that might arise don’t have a clear legal answer. Can the state legislature appoint a slate of electors independently, for example, or does the governor, who may be of a different party, have a veto? Given the electoral moment we are in, all the possibilities at that point are so troubling that it is hard to believe that whatever the outcome, the other half of the country would accept the decision as legitimate.
PAW spoke again to Pildes after journalist Barton Gellman ’82, writing in the November issue of The Atlantic, detailed several legal strategies the Trump campaign is reportedly contemplating to contest the results of the election:
What did you think of the Gellman article, “The Election That Could Break America”?
Those of us who know too much about these issues can spin out a wide range of nightmare scenarios. But there’s a delicate line that journalists and experts need to walk between educating people about various possibilities and fomenting a sense that the process will be complete chaos. On one hand, there are indeed troubling possibilities to worry about, but on the other hand, some voters become alienated and decide not to participate if they hear a constant message about low-probability scenarios that leave them feeling turned off by the whole process. Many people are already on the edge, which means sinister, nightmare-scenario stories will prime people all the more immediately to see any problems in the process — which there inevitably will be — as the product of intentional manipulation. That will not help us get through the inevitable difficulties of running the election while coping with the unique challenges COVID-19 presents.
Gellman reported that “the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority.” Is this legally possible?
I would remind readers that back in 2016, some Republican Pennsylvania legislators reportedly discussed the idea of changing state law to award electors by congressional district, as Maine and Nebraska do. That was driven by their belief that Hilary Clinton would likely win the state, and that this change would deny her all of the state’s electoral votes. Nothing came from that talk and Donald Trump, of course, went on to win the state.
In a close election with a lot on the line, it is not surprising to hear talk about many norm-breaking ways to try to control the outcome. I am not sure how much credence to give this kind of talk. But to answer your question, there are two scenarios in which this kind of maneuver might be attempted.
First, the Electoral Count Act does have an exception that says, if a state has held an election on Election Day but “failed” to make a choice, then the state legislature may choose to appoint the electors in a manner of its choosing. [3 U.S.C. §2] Many questions about this provision exist. When that statute was enacted in 1887, what Congress had in mind was a complete breakdown of the process where the election just couldn’t be completed — say, because of a natural disaster. But that issue has never been litigated. Would a legislature try to claim the election had “failed” because there are disputes about whether certain absentee ballots should be counted or not? That would seem an awfully big stretch. But we do not have court cases that give content to what a “failed” election means for these purposes. In addition, we do not know whether the legislature could act unilaterally here or would require the governor’s approval as well, as with normal legislation. The question is whether that word “legislature” means the formal body known as the legislature or the general lawmaking processes of the state.
The second scenario where a legislature might try to substitute its own slate of electors is if the legislature takes the position that the count made by the state’s official election canvassing board was not an accurate count. The legislature might claim, for example, that the board accepted certain types of ballots that were not legally valid votes. Then it would have to get a state official who is authorized to certify the vote to certify that the other candidate had won. We would now be in a situation in which there would be two different slates of electors, each purporting to represent the winner of that state.
The scenarios I’ve described, though, are extremely unlikely. If we get to that point, we are in a situation in which, no matter how the election was eventually resolved, the losing side would not be likely to accept the result as legitimate. There would be many consequences as a result, including making it extremely difficult to govern for the next four years.
Interview conducted and condensed by M.F.B. ’83.