How Rutherford B. Hayes could impact this year's presidential election

Employees of the Broward County Supervisor of Election's office in Lauderhill, FL counts ballots from the Mid-term election on Nov. 8, 2018. More than at any time since 2000, the possibility that states could have problems meeting crucial December deadlines for their electoral totals hangs in the air.

When the Supreme Court cut off the Florida recounts in 2000 and decided the case of Bush v. Gore, its 5-4 ruling hinged in part on federal deadlines for state presidential tallies. Now, those same Electoral College deadlines could confound results in the race between President Donald Trump and former Vice President Joe Biden.

More than at any time since 2000, the possibility that states could have problems meeting crucial December deadlines for their electoral totals hangs in the air. The sheer challenge of tallying mail-in ballots during a pandemic could delay final results, as could litigation in swing states with narrow margins between candidates.

Just as happened with the dueling sides in Bush v. Gore, advocates today are already making their respective cases for how the Electoral Count Act of 1887 would control any Trump versus Biden litigation. That law governs the casting of Electoral College votes and Congress' formal counting of the results on January 6 in a special joint session.

Key deadlines in the law for this year's cycle are December 8, when states must determine their election results, and December 14, when state electors actually convene in the states to cast their votes for president and vice president. (That first deadline, six days before the Electoral College meets, is known as a "safe harbor" date, when all court challenges should be resolved. If states certify their results by then, their validity must be accepted by Congress.)

Democratic and Republican lawyers have been anticipating all manner of trouble related to the November 3 voting because of the pandemic and today's polarized electorate. Democrats have expressed outrage over Republican Trump's efforts to discredit voting by mail and voiced concern that his campaign lawyers might prevent ballots from being counted in key battleground states.

Trump's claims escalated on Wednesday when he urged voters in North Carolina to cast ballots twice, by mail and in person, to test the system. (Such double voting is illegal.)

Concerned about post-election confusion and turmoil, some Democratic lawyers have begun arguing that states could take until late December to submit their Electoral College totals. Some Republican lawyers counter that earlier dates are hard and fast. Election law experts, meanwhile, note that Congress could change the archaic law at any point and establish new deadlines.

The one date fixed by the US Constitution is January 20, at noon, when the four-year term of the president and vice president ends and the next begins.

Deadlines and questionable deadlines

Who becomes the next president might depend on timetables under the Electoral Count Act. Like the nation's annual election day, the first Tuesday after the first Monday in November, the reporting deadline dates vary, controlled by such phrases as "the first Monday after the second Wednesday of December."

The Act traces to the disputed 1876 election between Republican Rutherford B. Hayes and Democratic Samuel J. Tilden, when several states sent Congress conflicting vote tallies. (After a contentious deal between Republicans and Democrats, Hayes became president.)

Law professors who specialize in election law say that the Electoral Count Act, which was more than a decade in the making, is rife with ambiguity.

"The ECA is tremendously complex and leaves a lot of gaps," said William and Mary law professor Rebecca Green. She said its deadlines and rules regarding state electors could fall to the courts, as happened 20 years ago.

By its terms, each state's electors meet on the first Monday after the second Wednesday in December (this year's December 14) to cast their votes for president and vice president. But six days prior, each state is supposed to make a final determination of the results. That is December 8 this year.

Ohio State law professor Edward "Ned" Foley, who has extensively studied the law, calls the December 8 safe harbor date "optional" but believes the December 14 deadline "a real hard stop" because that is when state electors must meet.

Foley adds that Congress could amend those deadlines at any point, however unlikely. Under the 12th Amendment the US House and Senate are responsible for counting electors and resolving state conflicts. "Congress has the power," he said, "to count what it wants to count."

Florida Republican Sen. Marco Rubio introduced legislation last month that would move that Electoral Count Act December 8 date to January 1 and the December 14 deadline to January 2. Rubio pointed to the difficulties local election officials might have this year because of the pandemic and lockdown and warned of looming "chaos." No action has been taken on the bill.

Because the first December date is the point at which a state's results would be protected from any challenge by Congress, some states have put that "safe harbor" date into own state laws, Foley said.

When the Supreme Court awarded the White House to Texas Gov. George W. Bush over Vice President Al Gore in its December 12, 2000, decision, the five conservative justices in the majority said Florida had run out of time for valid recounts.

In 2000, December 12 was the "safe harbor" date -- comparable to this year's December 8 -- for court challenges to be resolved and states to determine their final totals.

The Supreme Court majority declared that Florida required "the conclusive selection of electors to be completed by" that December 12 deadline.

"That date is upon us, and there is no recount procedure in place ... that comports with minimal constitutional standards," the court declared. In the majority, siding with Bush, were Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Dissenting Supreme Court justices said Florida really had, at minimum, until December 18 (when state electors were to convene), to finish its counts.

"(T)he December 12 'deadline' for bringing Florida's electoral votes into (the law's) safe harbor lacks the significance the Court assigns it," Justice Ruth Bader Ginsburg wrote. "Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count."

She emphasized that the complex Electoral Count Act included an even later December date for state submissions and that the ultimate deadline was January 6, the annual day when Congress opens and counts the electoral votes.

The majority's assumptions about Florida's inability to meet the true deadlines, she asserted, "should not decide the Presidency of the United States." She was joined in dissent by Justices John Paul Stevens, David Souter and Steven Breyer.

The Bush v. Gore dissenters noted that the Electoral Count Act identifies the fourth Wednesday in December as a significant date. If Congress has not received a state's electoral votes by then, it must ask the state's secretary of state to send them immediately. This year, that would be December 23.

Harvard law professor Laurence Tribe, who represented Gore in 2000, and two co-authors recently argued in The Atlantic that the true deadlines for state counts this year are December 23 (for states to send their tallies to Congress) and January 6 (for Congress to receive and count the tallies).

The August essay, entitled "Trump Has Launched a Three-Pronged Attack on the Election," was joined by Jennifer Taub, a professor at Western New England University law school, and Joshua Geltzer, executive director of the Institute for Constitutional Advocacy and Protection.

Republicans David Rivkin and Lee Casey, who both served in the Ronald Reagan and George H.W. Bush administrations, recently took an opposing view in a Wall Street Journal essay entitled "Mail-In Voting Could Deliver Chaos."

Rivkin and Casey contend state electors must be locked in by December 14, "leaving little time for errors or challenges to the results."

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