If the election results are even, the US may face a constitutional crisis

If the election results are even, the US may face a constitutional crisis

If the elections do not end in a decisive victory for one of the candidates, they may end up in a dispute for which the American system is not prepared, says Lawrence Douglas, a law professor at Amherst College. As he adds, this scenario is suggested by the president's announcements.

Douglas published "Will he go?" In May. (pl. "Will he go"), in which he outlined possible scenarios for a post-election constitutional crisis. 

As he assured PAP while writing the book these scenarios were almost exclusively a "mental experiment", after its publication he became convinced that the crisis was inevitable - unless the result of the November elections ended with a decisive victory for one of the candidates. 

"My conclusion is that our system is not well designed to deal with the situation where the election results are contested. And what was only a thought experiment at the beginning, now looks like a very likely scenario" - says the researcher.

Two things underlie his diagnosis, Douglas explains the American system, based more on respect for unwritten standards than on clear regulations; and the character and behaviour of President Trump, who, according to Douglas, built his political career on the ostentatious breaking of norms. And while the potential constitutional crisis in the past - as in the elections in 2000 and 1876 - was averted by the resignation of losing candidates, in the case of Trump, such behaviour is not certain. 

"President Trump has made many alarming statements about the elections in recent months, and due to the pandemic he has become a much weaker candidate when it comes to election chances," the lawyer assessed. "Let us remember that this is a politician who, even in his victorious 2016, loudly questioned the election results. Now he is the president, and the stakes are huge for him," he added.

He also pointed to several tweets and statements by Trump, in which the president directly stated that this year's election would be rigged. The main target of the president's attacks is the regulations introduced by some states that facilitate voting by mail. 

Douglas' amazement was also sparked by the president's refusal to make a clear declaration that in the event of a defeat, he would peacefully hand overpower. At a conference in September, he said he would "see what happened." During the debate of the candidates for vice president, vice president Mike Pence also refused to answer this question.

According to Douglas, the statements made by the president's allies in Congress, such as the head of the Senate justice committee, Lindsey Graham, also indicate that post-election disputes are inevitable. In an interview with CNN, Graham explicitly suggested that the Supreme Court may decide the outcome of the election. The prospect of electoral disputes is one of the Republican arguments for filling a vacancy in the Court before the November 3 elections.

Meanwhile, back in October, many lawsuits were filed in the courts against the state's postal voting regulations. Millions of voters have already cast their votes using this method, and the total number of correspondence votes will almost certainly be the highest in history. 

According to Douglas, the allegations of forgery are unfounded, and the president's administration has so far not presented any serious evidence that correspondence votes are alleged to be fraudulent. FBI chief Christopher Wray also spoke of the lack of such evidence. However, this does not mean that this case cannot cause a serious crisis. 

According to the lawyer, the most disturbing and likely scenario is one in which the initial results in key states would indicate a Trump win. Still, after adding correspondence votes - research shows that this is the method most preferred by Democrat voters - the final result is tilted to Biden's scales. Douglas is concerned that before the votes are counted, Trump will announce his victory and challenge the rest of the incoming votes. According to the PAP agency, some of the president's allies are counting on such a turn, describing it as his "best chance".

"In a way, Trump himself signalled such a scenario himself, saying the election result must be known on election night, so it's not even speculation: he actually told us how he was going to challenge Biden's eventual win," Douglas says. "The result can be great chaos," says Douglas. 

It is also about legal chaos. By law, states have until December 8 to send Congress a certificate of election results in their territory. If the controversy is not dispelled by then - which is possible - it could end up with two conflicting sets of results - one certified by a Democratic Party governor, for example, and one sent by a Republican-controlled parliament.

"It would be a terrible scenario," says the professor. He adds that such situations have happened in the past, and the law in force, dating back to the 19th century, is very unclear as to how Congress should behave in such a case. So far, the crisis were avoided only because one of the parties gave way for the sake of the country.

Another weak link in the vote of the Electoral College. In the American electoral system, the president is elected not by voters, but by virtually anonymous electors elected by individual states. 

While some states require electors to vote for the election winner in a state, such compulsion does not apply everywhere. As a result, theoretically, nothing - apart from the unwritten norm - prevents electors from, for example, Pennsylvania, which is crucial for the election, from voting for someone else. The cases of "infidel electors" have occurred many times in the history of the United States (including twice in the 2016 elections), although they never determined the final result. 

According to Douglas, the only way to avoid a "deep constitutional crisis" will be a decisive victory for one of the candidates. 

"If Trump - or Biden - lose by a significant number of electoral votes, I think a deep crisis can be avoided. While it's hard to imagine Trump accepting the results without questioning them, then-Republican politicians will pressure him to admit defeat. But for this to happen, Biden's advantage, both in terms of electoral votes and the result in states that are key to the elections - must be clear, and the votes should be counted relatively quickly "- the expert says.

Although the current polls show a significant advantage of Joe Biden - averaging 10 pp. - in a nationwide comparison, indecisive states such as Florida and Pennsylvania, his advantage is smaller. Due to the procedures used by some of these states, the counting of votes incl. Pennsylvania and Wisconsin may take longer than elsewhere.

"Our system is not prepared for such scenarios; it does not have any safeguards. So far, it has operated only due to the respect of certain standards. Now we cannot be sure" - concludes Douglas.

Oskar Górzyński (PAP)