The presidential election is still close, but here are three predictions you can make to your bank:
First, we don’t know who won on election night. Three potentially decisive states, Arizona, Pennsylvania and Wisconsin, are notoriously slow to count. The winner may not emerge before the end of the week.
Second, no matter who wins, Donald Trump will accuse the vote of being rigged. He made this claim in 2020, when he suffered a crushing loss to Joe Biden. He claims (again without evidence) that despite winning the election, he was deprived of the popular vote in 2016. He has already accused Democrats of cheating this year. “This is the only way they can win,” he claimed.
Third, if Trump loses, he will challenge the results in court as he did in 2020. It’s over on Inauguration Day,” Trump campaign manager Chris LaCivita said earlier this year. So prepare for a long and bitter legal battle that could end up with a Trump-friendly majority on the Supreme Court.
We’ve been here before. Four years ago, Trump tried and failed to overturn Biden’s election through a series of legal challenges. He asked Republican state lawmakers to overturn the results and then-Vice President Mike Pence to stop the counting of electoral votes. All refused. On January 6, 2021, a group of angry, deluded Trump supporters tried to stop this process by invading the Capitol; that, too, failed.
Democracy’s guardrails remain — and legal scholars say they are now stronger.
“I’m very confident that the candidate who wins on November 5th will be inaugurated on January 20th,” said Justin Levitt, who teaches election law at Loyola Law School in Los Angeles. But between those two dates, A lot can happen, he warned.
“There may be lawsuits. There may be delays. There will be a lot of misinformation, some of which will be spread intentionally,” he said. “There is a real opportunity for riots and even violence.”
Here are four ways a close election could run into trouble:
Request a court ruling
“There is always a risk of a repeat of Bush v. Gore,” Rick Hasen of the UCLA School of Law recently wrote, referring to the 2000 Supreme Court decision that decided The presidential election that year was between George W. Bush and Al Gore. “If the results come down to a few thousand votes or less in a state that is critical to an Electoral College victory, then we would expect both parties to do their best to litigate.”
In Pennsylvania, for example, Republicans filed a lawsuit complaining that the state’s rules for accepting absentee ballots with minor errors, such as missing dates on envelopes, were too lax. The state Supreme Court left it up to the state’s 67 counties to decide how to handle ballots.
If those votes could swing the outcome, the Trump campaign could argue it’s unfair for counties to have different rules. Similar questions prompted the high court to take action in Bush v. Gore .
Republicans have filed more than 100 lawsuits in multiple states challenging election rules to improve their chances after Election Day.
Refuse to certify results
What if local officials refuse to certify election results they don’t like?
Most legal scholars say courts will almost certainly reject these attempts, but they could still lead to delays, legal battles and potential unrest.
The once-obscure certification issue has gained more notoriety after Georgia’s Republican-led elections board issued new rules requiring county officials to investigate potential irregularities before certifying results.
Traditionally, certification was an administrative act, with the Electoral Commission merely confirming that the results compiled matched those reported by the precincts. Investigating allegations of irregularities or fraud is the responsibility of law enforcement agencies, not the election commission.
In several counties across the country, pro-Trump election officials briefly refused to certify the results, but courts unanimously ruled against them. Two Georgia courts have ruled that the state elections board’s new rules are invalid.
“Certification is unlikely to occur [constitutional] “This is a crisis,” said Edward Foley, a leading expert on election law at Ohio State University. “The courts are going to handle this as they have before.”
danger of violence
But all of these challenges increase the potential for violence.
On January 6, 2021, Trump told his followers: “If you don’t fight like hell, you don’t have a country anymore.”
This year, he repeated the warning, telling supporters that the election was a matter of life and death — literally. Last month, he told a rally in Wisconsin that if he didn’t win, immigrants “will come into your kitchen. They’ll cut your throat.”
“You will no longer have a country,” he said again.
Violence is always possible, even possible. Trump has been the target of two assassination attempts. But law enforcement agencies spent four years preparing to protect polling stations, tabulation centers, election officials and judges.
Trump claims (without evidence) that a watchmaking center in Detroit, which has been outfitted with bulletproof glass, is a hotbed of fraud. Election officials in Arizona’s Maricopa County have been attacked by pro-Trump fanatics, and snipers are being deployed on rooftops in the county. The U.S. Capitol Police have worked hard to ensure that the events of January 6 do not happen again.
Finally, election law scholars say violence does not necessarily undermine the outcome.
“I do worry about that,” Levitt said. “We live in an environment where some people believe that the threat of violence is an acceptable tactic. … But it’s not going to have any greater impact on the outcome of the election than it did on January 6th.
Congress once again has final say
According to the Constitution, Congress formally counts votes on January 6. Two-thirds of House Republicans supported the plan, but Democrats and moderate Republicans blocked it.
That’s unlikely to happen again, thanks to a law passed by Congress in 2022 that makes it harder to challenge electoral votes and clarifies that the vice president does not have the authority to decide the election outcome.
However, if one-fifth of both chambers object to a state’s electoral votes, both chambers must vote to accept or reject it. If both chambers have Republican majorities, the outcome could fall to a handful of moderate Republicans such as Sen. Susan Collins of Maine and Lisa Murkowski of Alaska. in human hands.
Adding to the list of potential nightmares is another unknown: What would happen if the electoral votes were tied 269-269?
In that case, the House of Representatives would choose the next president under rules that favor Republicans. Each state’s House delegation would get one vote, rather than the normal voting by individual House members, meaning California and North Dakota would receive equal weight. In the current House of Representatives, 26 states have mostly Republican members; only 22 states (including California) are controlled by Democrats. (The two states are equally divided.)
There hasn’t been a tie since Thomas Jefferson tied with Aaron Burr in 1800. (Jefferson won the runoff.) Polymarket, a prediction market, puts the chance of a tie this year at 4 percent.
Error messages will remain a danger
This is not a question of “both sides”. Only one party told its followers that if it lost, the only possible reason would be that the election was stolen.
It doesn’t seem to matter whether the challenge is legitimate. In 2020, that’s not the case, as Trump’s string of court defeats attests. But polling this month found that a majority of Republican voters believe election fraud is likely to occur this year, even though no major instances have been proven in decades.
Claiming that every election is rigged is not only part of Trump’s political message; This has become part of his business model.
Last time, he raised more than $250 million through his advocacy after Election Day. Only $13 million of those donations were used to fund legal actions to reverse the election results. The rest went into Trump’s political coffers, allowing him to get an early start on his next campaign.
Trump’s misinformation won’t go away after Inauguration Day. He made bitter post-election battles a lasting feature of American politics.
“This is extremely unhealthy for democracy,” Levitt said. “This is a long-term cancer in the system.”
Read more of McManus’ columns on the election: