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Prolonged Election

Updated: Dec 4, 2020

The 2020 presidential election, prolonged by President Donald Trump’s court challenges and demands for recounts in some states will come to an end, sooner rather than later. Citizens may be assured of that by constitutional and statutory mechanisms.

This election, fraught with tension and anxiety, is not nearly the nail-biter that the nation endured in the 2000 campaign, which ended only after the US Supreme Court ruled in Bush v. Gore that the recount in the State of Florida could not continue. That 5-4 decision, delivered on December 12, resulted in the award of the state’s Electoral College votes to George W. Bush, who captured the popular vote by 535 votes. That is what we Americans call a close presidential election.

The 2020 race, by comparison, is a walk in the park, despite a protracted period. For students of our constitutional system, it represents a fine teaching moment about the rights of candidates and the nature of the electoral process as it stretches beyond Election Night in America.

For starters, let’s understand that President Trump is exercising the rights available to any presidential candidate. He certainly is entitled to seek an election recount. In some states, a recount is automatically triggered, if the margin of the victory falls within stated parameters. It is also clear, that a presidential candidate may assert, as Trump is asserting, that the voting process reflected improper conduct or counting, or even fraud or illegal behavior, and then file a lawsuit to seek a remedy in state or, in some cases, federal court.

At this juncture, President Trump’s efforts to overturn the election results are unavailing. He has yet to win a significant victory in court. Most of his lawsuits have been dismissed by the presiding judge after Trump’s lawyers have been unable to produce any evidence of fraud or wrongdoing in the election. The New York Times recently reported that state election officials across the country have not declared any fraud in their jurisdictions.

If President Trump’s litigation path reaches a dead end, then his only hope for avoiding defeat at the hands of former Vice-President Joe Biden, is to prevail in a recount of the votes cast in various battleground states, including Pennsylvania, Wisconsin, Georgia and Arizona. History tells us that recount efforts may flip 100 or 200 votes, but not significantly more than that. That electoral history reflects the fact that those who count votes seldom make errors. Workers are meticulous patriots, committed to counting every ballot. As a result, Trump’s wishes are not likely to be fulfilled. Thus far, the last ballots counted by clerks have contributed to Biden’s rising—not falling—margin.

President Trump may well pursue these efforts to overturn election results until all potential remedial paths have been exhausted. Some advisers are counseling him to abandon these dim hopes, in part to immediately launch what he himself has forecast to friends and supporters-- a bid to recapture the White House in 2024.

Whatever course President Trump decides to follow, federal law and constitutional provisions will govern the conclusion to the 2020 presidential election.

A federal law—3 U.S. Code , section 5—requires states to resolve any disputes six days before members of the Electoral College meet on December 14 to cast their ballots, based on the outcome of the election results in their respective states. This “safe harbor” provision in the statute means the deadline for settling disputes in 2020 is December 8. Thus, the nation may need to wait for nearly a month longer before the Electoral College fulfills its constitutional duty, and casts the votes that will make Joe Biden the 46th President of the United States.

The constitutional right of Americans to choose the form of government for our nation, and the men and women who should be placed at the helm to carry out solemn duties and responsibilities is what Thomas Jefferson called, “the ark of our safety,” indispensable to carrying out the will of the people. This precious right, hardly available to many on our planet, even in the 21st Century, will not be deterred by delays. That would greatly please those who founded our nation.


David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.

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