The results for the 2020 US presidential election have never been so confusing.

In 2000, when Al Gore ran against George W Bush, life was so much simpler: Florida was the only state where the results were in dispute. Those were the days of the hanging chads.

On Tuesday evening (US time), November 10, I checked election maps in the Telegraph and at Real Clear Politics. The Telegraph had Pennsylvania, with 20 electoral votes, going to Biden. Real Clear Politics, based in the US, had the state undeclared.

At the time I checked both maps, People’s Pundit Daily tweeted:

Neither map had this result posted.

Additionally, I could not find where North Carolina’s State Board of Elections called the result.

Even so, Thom Tillis’s opponent conceded that day:

There are two more maps I looked at that night (as it was in my time zone) — People’s Pundit Daily‘s and the one at Power Elections:

Note that, on the night of November 10, the Power Elections map was showing Wisconsin and Minnesota still undecided — along with Pennsylvania.

Meanwhile, People’s Pundit Daily showed only Arizona and Georgia still in play.

As far as electoral votes go, Power Elections had Biden up by one. People’s Pundit Daily had Biden up by 50 (279-229).

I’m not blaming any of these outlets for confusing the issue, but, until this year, maps were pretty well unified after the election.

Rudy Giuliani, incidentally, seemed satisfied that Real Clear Politics changed their result for Pennsylvania (note Twitter’s response):

Just as bad is this — the coronavirus crisis:

So, what happens when an election result is in dispute across the nation?

A. S. Haley, better known online as Anglican Curmudgeon, explained what the constitutional course of action is in his November 8 post, ‘Down to the Brass Tacks’.

My fellow churchman wrote an excellent article. A big tip of the hat goes to another fellow churchman, Underground Pewster, for the link.

Excerpts follow. Emphases mine, except where noted otherwise.

First of all, for my readers who are not American, please note (emphases in purple mine):

the rush to “call” a winner of the 2020 election has been driven by the major news networks, who are unanimously biased against President Trump. But the media have no power under the Constitution to declare anyone as “President-Elect”. That title may be bestowed only upon the winner in the Electoral College vote of December 18, or if not there, then upon the candidate selected by the new House of Representatives that convenes on January 3, 2021. 

The Electoral College will meet on December 14 and the results will be available on December 18.

The US Constitution and pursuant Congressional statutes make the following provisions:

By Congressional statute (3 U.S.C. § 7), enacted pursuant to Article II, Sec. 1, cl. 5 of the Constitution, the Monday after the second Wednesday in December of a given Presidential election year has been specified as the date on which all State electors are to meet in their respective State capitals and cast their ballots for both President and Vice President. In 2020, that date falls on December 14.

Normally, the electors for any given State are those persons who (first) have been nominated beforehand by a registered political party or independent candidate within that State (or Congressional district), and then (second) who have the fortune to have their Presidential candidate receive the highest number of votes cast in that State (or district) in the November election. But when is it determined that a given Presidential candidate has received the requisite highest number of votes?

Ay, there’s the rub. Again normally, the vote tallies in the various counties and districts of the State are completed within a day or two of Election Day, and are clear enough so that there can be no dispute about which candidate got the most votes. But occasionally, as happened in the Presidential election of 1876, and as almost happened in the Presidential election of 2000, there were disputes about which candidate prevailed in various States, so that the slate of electors entitled to cast votes for their respective candidate was rendered uncertain. The Constitution specifies that in such cases, as well as in any case where no candidate receives a majority of the Electoral College votes, the final selection of the President goes to the newly elected US House of Representatives, and the selection of the Vice President goes to the newly elected Senate.

That last sentence is very interesting. If Nancy Pelosi remains Speaker of the House presiding over a Democrat majority, Biden would be president. Mitch McConnell, Senate Majority Leader, and the Republican majority could select a Republican VP. Talk about fireworks.

A S Haley compares and contrasts 2020 with 2000:

As regards the election results in Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada, we are witnessing a repeat of what happened in Florida in 2000.  You may recall that the then Democratic Party candidate Al Gore contested the official count in certain counties of that State in favor of the Republican Party’s George W. Bush. Gore, however, was under a deadline to have the recounts he requested resolved in his favor before the Florida Secretary of State certified the official count to the Governor, who would then sign the certificates attesting selection of the Republican slate of electors to the Electoral College.

Again, Congress has legislated what happens when there is a dispute in any given State over its proper slate of electors. Section 5 of Title 3, U. S. Code, provides that if election results are contested in any state, and if the state, prior to election day, has enacted “procedures to settle controversies or contests over electors and electoral votes”, and if these procedures have been applied, and the results have been determined six days before the electors’ meetings, then these results are considered to be conclusive. Six days before the prescribed meeting of the Electoral College on December 14 of this year falls on December 8. (The date is referred to as “Safe Harbor Day”, because the statute makes any resolution of election disputes reached by that date presumptively conclusive, i.e., not subject to further contest.)

Therefore, the contested results need to be ‘resolved’ by December 8. However, even then, there is a provision when they are not:

Here again, however, the federal nature of our Union kicks in. For while it probably will not be practical to have all contests in all disputed States determined in the courts by December 8, it may suffice for one such dispute to have been finally determined at the highest possible level by that date, if that determination is definitively made by the United States Supreme Court (SCOTUS), and if it fairly applies in the other cases, as well. That is because, under our federal system, the rulings of SCOTUS on federal law are automatically binding on all lower courts, both federal and State.

I learned this years ago in US History class, at least twice, but never imagined that this fateful day might come to pass in my lifetime. It seemed so hypothetical decades ago. Today, in November 2020, we could be at that point.

The biggest issue revolves around Pennsylvania (20 Electoral College votes) during a year of coronavirus. Pennsylvania encouraged voters to use postal votes instead of appearing in person to vote this year. The Republican Party of Pennsylvania has brought a case against the secretary of state, Kathy Boockvar:

which challenges the decision by a unanimous Pennsylvania Supreme Court to (1) extend the statutory deadline for receipt of all mail-in and personal ballots by three days after the legislated deadline of 8 p.m. on November 3; and (2) require the various election boards to include in their counts any ballots received by the extended deadline which could not definitively be shown to have been mailed after November 3 (i.e., ballots in envelopes bearing blurred postmarks, or even no postmarks at all). This ruling, be it noted, shifted the burden of proof from the individual voter to the given elections board to establish that a ballot was not sent in by the statutory deadline — and why would a Democratic-majority elections board try to prove that a ballot for their candidate had not been sent in on time?

Supreme Court Justice Alito issued an order requiring that the Pennsylvania ballots arriving after Election Day be segregated apart from those that arrived on time:

pending action on the petition for review by the full court.

Haley says that the Supreme Court could issue further orders in the days to come.

Can the Supreme Court help Trump? Haley says that things could become quite technical legally. The result could go either way:

Here is one very strong summary of the issues for the Republican petitioners, and here is another informed view that calls into question whether SCOTUS will grant any definitive relief. In the words of my previous post, “you pays your money and you takes your choice.”

As for the Electoral College, this is how electors are chosen:

Here is the language of Article II, Section 1, clause 2, which has been with us since the original document was ratified in 1789 (with my bold emphasis added):

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Thus if the various State and federal courts prove inadequate to the task of resolving the election disputes in each contested State before the Safe Harbor day of December 8, the Legislatures of those States are empowered to step in and resolve the disputes by designating their own slates of electors. And it has not gone unnoticed that of the disputed States (Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada), all but Georgia have Democratic governors, as well as Democratic Secretaries of State, and Democratic election officials, while they each (except for Nevada) have legislatures in which both houses have Republican majorities.  

However, will the states have the nerve to:

exercise their Constitutional power to resolve those disputes definitively, in time for the final vote of electors by December 14? On the answer to that question depends who will be President on Inauguration Day, January 20, 2021.

Haley rightly blames this year’s election chaos on the Democrats for their notional coronavirus concern with mail-in ballots.

If the lawsuits against individual states and the Supreme Court come to nothing in resolving the election result, then Americans have only the House of Representatives — congressmen and women — left.

There is a chance that Republicans could still control the House of Representatives:

If the vote does go to the new House of Representatives:

the vote for President will not be by a majority of its individual members, but (again as specified in the Twelfth Amendment) by the collective delegations for each State in the House, with each delegation having a single vote. As of the latest results for the 435 House elections, Republicans on January 3 will control 26 of the State delegations, and will thus have a majority of the 50 delegations so voting

In conclusion:

what happens between now and January 20, 2021 is pretty much up to the Republican legislators elected to Congress and to their various State legislatures.

Let us hope for the best.