With less than three weeks until Election Day, millions of voters are planning to cast their ballots in non-traditional ways, and Americans are coming to the realization that there might not be a clear winner when the sun rises on Nov. 4.
The New York State Bar Association’s Task Force on the Presidential Election held an information session on the laws that will determine how the winner of the November election is decided. Task Force chair and veteran election lawyer Jerry H. Goldfeder participated as did several other task force members including Ava Ayers, James A. Gardner, John “Jack” Hardin Young, Richard Pildes and Jed Shugerman.
The transcript has been edited and formatted for clarity. To watch the entire program click here.
Q: What is the first step in the Electoral College process?
A: Ava Ayers, director of the Government Law Center at Albany Law School
The people vote in their states and the state certifies a winner. And it looks like you’re voting for a presidential and vice-presidential candidate. In fact, you’re voting for electors, and under New York State election law as with every other state, your vote for a presidential and vice-presidential candidate is deemed to be a vote for the electors whom the party puts forward. You can look those electors up on the state board of elections website. For the Democratic party, they include people like the governor, the lieutenant governor, Randi Weingarten, Hillary Clinton and her husband as well as Kathy Sheehan, Lovely Warren and some other local Democratic notables. On the Republican side, they include the minority leaders of the Senate and Assembly conferences. So you vote for these electors, and after the votes are counted, all states except Maine and Nebraska give the winner of the state’s popular vote all of the Electoral College votes. It’s a winner take all system in 48 states. And then on Dec. 14, the electors meet to vote in their States. In New York, they meet in the State Capitol as required by the statute.
Typically, the electors vote for the presidential and vice-president presidential candidates, whom they pledged to support when the party chose them. From time to time it has happened, albeit very, very rarely in history, that an elector will vote for a different candidate or even someone who’s not seeking the presidency.
So in 2016, for example, three electors from Washington State who had pledged to support Hillary Clinton instead voted for Colin Powell, not because they supported him, they were hoping to prompt a movement of faithless electors across the country who would vote for someone other than Donald Trump. Thirty two states and D.C have laws binding such faithless electors. They use different methods for doing so. Some laws require electors to vote for their party’s nominee. Some laws require them to pledge beforehand to do so. And fifteen of the states have the authority to sanction faithless electors either by, in some cases, punishment, they can be fined $500 or by automatically deeming their faithless vote to be a resignation of their office.
And the other electors then substitute someone else who can presumably vote for the candidate to whom they’re pledged, which is a way of legally nullifying the faithless vote. In the case arising from the 2016 election in which faithless electors were fined $1,000, the electors sued to say that that state law unconstitutionally infringed on their freedom to vote as they saw. And this past July, the Supreme Court rejected those claims, finding that states are free to sanction faithless electors without violating the constitution.
New York State does not have a faithless elector law now. There’s a bill that’s been introduced and has passed the Senate, but not the Assembly, that would automatically replace the faithless vote for the candidate that the elector is designated to support. So once the electors vote, they prepare and sign certificates of the vote, which are transmitted to all sorts of people in the state and to the federal government. They are supposed to arrive by Dec. 23rd.
There are both certificates of the vote signed by the electors and a certificate of ascertainment, which certifies the correct slate of electors from that state. The certificate of ascertainment comes from the state’s executive, which is the term used in the federal statute. And from time to time, there’s been some dispute over precisely who that represents in certain states.
Q: Why do we vote for electors rather than presidential and vice-presidential candidates? What is the process for recounting the ballots?
A: John “Jack” Hardin Young who was on the Democratic National Committee team that handled the Florida recount during the 2000 election and Bush v. Gore
We are voting for electors because of the unique way the constitution has developed under Article 2, Section 1, Clause 2, which we saw applied in Bush v. Gore, and that is the election of electors. As we saw in Bush v. Gore, between Election Day and finalization of a vote we have a period where disputes can be resolved.
Recounts are merely an attempt to recount the ballots and they try to duplicate what happened on Election Day. As we saw in Bush v. Gore, this doesn’t get to questions of fairness or of allegations of fraud, but simply is an attempt to recount the ballots. And we saw in Bush v. Gore how those numbers are refined. And we see it in recounts from time to time across the country, how the numbers will become more definite as we take a hard look at what is counted and not counted. It is a state law that governs the process. There is no federal law that you would apply.
Q: What happens if multiple slates of electors are competing to represent a particular state?
A.: James A. Gardner, a SUNY distinguished professor, Bridget and Thomas Black professor and a research professor of political science at the University at Buffalo School of Law
So, the first thing that people ask is, how could that possibly happen? The two slates of electors could contend that they are the legitimate electoral voters in the Electoral College for the state. And it’s actually happened three times.
So there are two ways that this has happened. One is relatively benign. That is when the state procedures to resolve election disputes that Jack was just talking about take too long and end up reversing the initial result. The second way is much, much worse. And that’s when there’s a catastrophic breakdown of the rule of law in the state that’s affected. The first situation arose once in 1960 when there was a legal dispute over the outcome of Hawaii’s presidential election and legal proceedings dragged on, and it ended up with a reversal of the original results. So what happened there was the governor reported to Congress the initial provisional result, which was that the Republican, Richard Nixon, had won. That was reported to Congress.
And then just before Congress started to count, the electoral contest procedures in the Hawaii Judicial System concluded, and they concluded that Kennedy had actually won the election. So the governor signed a second set of certifications, which went to Congress. That dispute was resolved during the Congressional counting process by the vice president who presides over this, and that was Nixon himself, a candidate. And he resolved it in a rather statesmanlike way by using parliamentary procedure. He asked for unanimous consent that the votes of the Democratic electorates would count. So he resolved this against himself, and because the Electoral Count Act was never invoked. It’s just a legal procedure that governs the counting procedures in Congress. It really doesn’t provide any guidance. And I think it’s rather doubtful, we could expect any statesmanship in 2020 if a problem occurs.
The second situation involves a breakdown of the Rule of Law in the states affected. So in 1872, Louisiana sent two slates of electors, and in 1878, Florida, Louisiana and South Carolina did so. Now, this was late in reconstruction. The South was chafing under military rule by the North. There was bitter electoral violence. And to make a long story short, two different groups claimed to be the legitimate representatives of the people. And they each sent slates of electors. So, Congress resolved the dispute in 1876 through a quite messy and ad hoc and unsatisfactory method, which eventually prompted it a decade later to enact the Electoral Count Act to try to bring some order to such disputes, if they arose again.
In 2000, there was a credible threat, I think, from the Republican-controlled Florida legislature, that if the Democratic candidate, Al Gore, was declared the winner of the election, that the Florida Legislature would use what it claimed to be its Article 2 powers to revoke the delegation of elector selection to the voters, and simply itself choose a slate of Republican electors. But it was never necessary for them to do that because of the outcome of the Bush v. Gore litigation.
So both of these preconditions do seem possible in this cycle. That is an extremely extended legal battle over the outcome in the states and the contest phase, and a potential breakdown or disregarding of the Rule of Law. If that occurs and two slates of electors make it to Congress, how is it resolved? So first of all, the actual rules are complex and ambiguous and contested. Here’s the bottom line: Congress will decide which slate of electors vote, which electoral votes to count or to count none of the votes. And if that happens, both houses voting separately have to agree. If they don’t agree, that creates some other possibilities, which my colleagues will now discuss.
Jerry Goldfeder, chair of the Task Force on the Presidential Election, special counsel at Stroock & Stroock & Lavan LLP and an adjunct professor of election law at Fordham Law School:
Just in case anybody thinks this is all ancient history, and this hasn’t happened really in a long time, it’s true that it could happen. We have a ton of mail-in ballots that may take a very long time to be counted. And as Jack was saying, it’s done under state law, and we can expect an avalanche of lawsuits. Again, it will be determined by state law. And now we turn to the federal constitution and the federal law to see how that plays into this process
Richard H. Pildes, the Sudler Family professor of constitutional law at NYU School of Law:
The situation we’re dealing with arises basically because the constitutional design has a gap. It doesn’t really provide an institutional structure or a mechanism for resolving a disputed presidential election in the modern context where we vote for president ourselves. The original design resolves these issues by putting the power in the House to resolve a disputed election under very unusual circumstances, but that’s not the most likely scenario we’re going to face this year.
If there are big disputes, they’ll probably get resolved in Congress. But under the Electoral Count Act, there are long-standing debates about whether the act actually does legally bind Congress or not. Secondly, even if it does legally bind Congress, what does that mean? In particular, would the courts actually enforce the act against Congress? And so even if the act is legally binding on Congress in principle, which it may not be, there’s still a question about whether you could bring a court into the picture to enforce it, or whether Congress has the ultimate authority, whatever the statute says.
Now, the first key date in the act is what’s called the safe harbor date. This is Dec. 8th, which is only five weeks after the election. And what the safe harbor provision provides is that if a state has made a final determination about who has won before the safe harbor date, which means resolving any litigation and election contests, then the act tells Congress, it is supposed to treat that slate of electors as the slate to be counted. With the massive surge in the absentee ballots and states like Pennsylvania and Wisconsin, which refused to allow their election officials to start processing those ballots before Election Day, its conceivable states could bump up against this five-week deadline.
I have written urging Congress to move these dates back this year. Florida Senator Marco Rubio introduced a bill to do that. There’s been no movement on that. If a state has only one slate of electors that comes in before the safe harbor date, Congress is supposed to accept that slate. If we do have two returns and both come within that safe harbor date, or if neither of those returns is within the safe harbor date, then this federal law says that state law is to determine which of those slates have been duly authorized to represent the state. And Congress is supposed to follow whatever state law dictates.
Now ultimately, the way this works is when Congress convenes the joint session on Jan. 6th, with the incumbent vice president presiding, the votes are opened by the vice president. And if there is an objection to the vote from any particular state, then the two houses go to their separate chambers and they are to resolve this objection. If the two chambers agree, that’s the slate they’re going to count, or the slate they’re going to reject. If they disagree, the ultimate tiebreaker in the statute is that the certificate that is signed by the executive of the state is to be the one that is the tiebreaker.
Now, executive, you might think it means governor. That probably is its most natural meaning, but it could mean the Secretary of State. It could mean the state canvassing board that finally certifies the result of the question of who is the executive for these purposes is to be determined by state law. So it’s an obviously fundamentally political process about which slate of electors gets counted. And lots of uncertainty about whether courts would enforce any part of the statute or whether they would treat these issues as political questions.
Q: The electors meet on Dec. 14th this year and they vote. So how could it happen that there would be two slates of electors with two envelopes sent to Congress to tally on Jan. 6th? How would that happen?
A: Let’s say we’re dealing with Pennsylvania, and we’re running up against the safe harbor date of Dec. 8th, or even the date the electors have to vote on Dec. 14th. And it looks like Pennsylvania isn’t fully able to finish its count. Disputes about absentee ballots are tied up in court. There are incentives to drag that process out. The federal statute provides that if a state has failed to appoint its electors, the state legislature then has the power to step in and appoint them. So you can imagine in Pennsylvania as we bump up against this deadline, and it’s decisive in the election, or two or three states are in this position that are decisive, the state legislatures in those states, which are all Republican legislatures, might say, “The election has failed. We’re not finishing the count. We’re going to appoint a Republican slate of electors for President Trump.”
At the same time, the governor presumably, Democrats in Wisconsin, Pennsylvania and Michigan, for example, may say, “We’re not going to stand idly by and let that happen. We are going to certify a slate of electors based on the count that we have been able to make up to this point.” And now you have these two slates of electors both purporting to represent Michigan or Pennsylvania or Wisconsin going to Congress.
Q: If neither candidate gets the 270 Electoral College votes needed to win the election, then what?
A: Jed Shugerman, a professor at Fordham University School of Law and author of a book that traces the rise of judicial elections, judicial review and the influence of money and parties in American courts
There are too many details to go into all of them, but there are a lot of ways that the Electoral College might fail to get a majority and that for a number of reasons about whether you can get a majority of the electors appointed, how to define the word appointed. And we think there’s a rabbit hole of the various ways that either house could engage in hardball to not allow the Electoral College to certify. So then there are, I would say, four steps after that. The first step is is that the Constitution says that the presidential term ends Jan. 20th. There is no extension at that time. So the current president ends his administration on Jan. 20th, and then we go into these next three steps of scenarios.
The first under the Twelfth Amendment is that the House decides the presidential election with each state delegation voting so that you need a majority of the 50 states. D.C doesn’t count for that purpose. And the winner needs 26 of the 50 states. And one can look around at the likelihood of which party is likely to have 26 of those state delegations. And then there are questions about how to play hardball, about which delegations to seat. And those raise some complicated, legal and Constitutional questions. And in 1800, the House needed 37 rounds of ballots. You may have seen a musical that dealt with this question, in which the House, because of state delegations, they delayed the election of President Jefferson versus his running mate, Aaron Burr.
So the House can deadlock, so that no one gets 26 or the House might not be able to convene to resolve that if there is a gap between which party is running the House as a majority of representatives versus which party has 26 state delegations. So then the next step is the vice-presidential vote in the Senate. And there you need a majority of 51 senators. There is a question about who would be the president of the Senate, if it’s before January 20th and if Pence continues to be vice president. And if the Senate can resolve that question, then the vice president becomes acting president. But if both the House and the Senate are deadlocked, then the fallback is the presidential succession act of 1947, which makes the Speaker of the House, and then the President Pro Tem of the Senate, the next two in line followed by the Secretary of State.
One constitutional problem is what constitutes an officer under Article 2. An officer arguably cannot be a member of Congress and must be a member of the Article 2 executive branch. There could be a constitutional dispute about whether the speaker or a member of the Senate can serve as president. In that case, it would then devolve, it would then descend down to Secretary of State from the previous administration. So there are a number of unresolved questions, even in the backup plans.
Q: Is there also a possibility here for challenges around the legality of votes that are taken in absentia or virtually, which we’ve never seen before as a result of COVID that you cannot actually in-person certify your electors, or in-person actually cast a vote in terms of these bodies that are responsible for doing so?
A: Jed Shugerman
Each house controls its own rules is the bottom line. So that both the House and the Senate could change their rules to allow for that. And that’s really a plenary power that we don’t think of as being addressed by the courts.
Q: When we’re talking about the states that are in control of these various different processes, at least at the outset, how does it end up with the Supreme Court? And if it does end up with the Supreme Court and there is a vacancy, is that going to make a difference?
A: Jack Hardin Young
Yeah, I think the easy answer is resolved in Bush v. Gore. And that is that Article 2, in the words of the court, leaves it to the legislature exclusively to define the method of apportionment, that is the electors. A significant departure, however, from the legislative scheme for appointing presidential electors presents a federal constitutional question. And what the court found there is that Section Five of the Electoral Count Act provides that the state selection of electors shall govern in the counting of electoral votes.
In Bush v. Gore, the whole problem was there were no preexisting rules that could be applied. So the Supreme Court has a way to shoehorn itself once again into the controversy, assuming that arguments can be made that there is an irregularity in the process, and the rules are being made up ad hoc after the election. This was the case in Bush v. Gore. So the Supreme Court can reassert itself, and Bush v. Gore despite the Supreme Court saying, it doesn’t provide any precedent, provides somewhat of a rough roadmap of how the matter gets resolved when you push up against the safe harbor rule, which some of us might argue is no deadline at all. It is an advisory rule to be applied by Congress.
One of the odd features of the state and federal systems on election issues is that most of the process is governed by state law but there’s also a federal constitutional overlay. The Equal Protection Clause applies, right to vote provisions apply, the court… the doctrine of the right to vote applies. So what we often have in election cases is dueling litigation in the state courts and in the federal courts with a good deal of uncertainty about what those jurisdictional boundaries are. And so it’s very easy to imagine that we would have one of these fights over absentee ballots going on in, let’s say Pennsylvania, which I think is one of the two ground zero states in terms of potential problems.
One side may be in state court because they think they’re going to get a better result there. And the other side is going to go to federal court and turn these voting issues into federal constitutional issues. And depending on which court is ahead in the line and whether one differs from the other or not, the Supreme Court could get involved either because the case has come up through the federal courts or because they come up from the state’s Supreme Court. So there are both paths available potentially.
Q: There seems to be this nebulousness about the term executive seems a little bit troubling. And also, is there a possibility that within a state you have a legislature and an executive at odds when it comes to what kind of slate of electors to send on?
A: Richard Pildes:
Yeah, so on the first point, Congress spent about 10 years trying to work out the issues in the Electoral Count Act, and unfortunately, they still left us with more ambiguities than we want, particularly on this crucial tiebreaker issue. Now again, state law determines who is the executive for purposes of certifying the vote. But it is a problem that the act is not more clear about that. It should be amended to make that clear. Jed, did you want to jump in?
The second question, Rick, was about the legislature, which I think is Article 2, Section 1, just to jump in on that. And Rick, just tell me if you agree or disagree. There was coverage of this question, Barton Gellman in The Atlantic was reporting that there may have been a gambit by some legislatures to override, or if there’s confusion, step in and certify its own electors regardless of how the votes are being counted. And this is an interpretation of Article 2, Section 1, which allows legislatures to set the manner of appointing electors. I think many people, not all, but many people think that that clause of Article 2, Section 1, Clause 2, I believe, is a reference to setting the manner before the election.
And so that does not enable a legislature to step in after the votes have been counted to override the process. Second of all, there is an interpretation that once a state has a legislature and a legislative process, that that also includes the governor’s veto power. And so for example, if the Pennsylvania Republican state legislature certified electors for Trump, even as there’s a fight over Pennsylvania’s public voting, that the Democratic governor could veto that process. In my view, those two are the best ways to read Article 2 consistent with the other texts and values of the Constitution.
Q: Well, to complicate this a little further, if a state fails to determine who won the vote on Election Day, then the legislature can remedy that by choosing a slate of electors in an alternative way. So how would that work?
A: Jack Hardin Young
I think the best read of the word legislature should incorporate both the legislature and the governor because that would be how the state has already set its legislative process. And again, there is no universal consensus about this, but in the example of Pennsylvania, it should be both the legislature with a governor power of veto upon it. Again, that is one reading and I think the best reading, but it does leave open a question where there are reasonable arguments on both sides that could get tied up in court and lead to some of the scenarios we’ve talked about here with the Electoral College failing to reach a majority and then needing the 12th Amendment process to get to the house.
Let me provide a counter-argument. And that is that the word legislature in Article 2, Section 1, Clause 2, taken in its historic sense, means the legislature without reference to the executive, that historically it was the legislature alone that chose the president and vice president through the electoral process. And that we don’t get to a constitutional view unless there is an irregularity in the process and that here, the legislative function under Article 2 is really intended to be an administrative one; a ministerial one, based on the popular vote. The state has already made a decision in its statutes that the legislature is going to be controlled by the popular vote statewide, except in those two states that allocate by Congressional districts.
Q: If you miss the safe-harbor deadline, is it possible for there to be contested slates of electors submitted by a state in which case neither slate is accepted and then all the voters of that state are disenfranchised?
A: Richard Pildes
Yes, in theory, that’s possible. It’s, of course, highly unlikely in the modern context, but in theory, it’s possible. If you’re wondering how in the world can we have so many unresolved questions about something so fundamental, I want to put this in context by reminding you of how the federal court system works, which is, the federal courts won’t decide issues outside of an actual case or controversy. So think about how perverse that plays out in a context like this. The last place or time you’d want the federal courts to be working out the rules about the Electoral Count Act, which has never been interpreted by a court, whether it’s binding, is in the context of a disputed presidential election.
But they will never address that question except in the context of a disputed presidential election. And so that’s why we’re banging our head against the wall here on so many of these issues, which must be incredibly frustrating because the one thing we all want is a clear rule structure, a clear legal framework in advance for resolving the most potentially divisive issues a country can face. And these are moments where democracies do lapse at times into civic violence, and actually come unraveled in some contexts. And the thing we most want is some agreed framework that’s legally binding in advance when we don’t know whose ox is going to be gored by how this framework applies.
Can I just add to that? You asked if it make a difference if there are only eight justices on the Supreme Court at the time of the election. And I think that in federal court procedure, generally, if the Supreme Court ties, then the lower court decisions stand as binding, which means you do get a ruling. However, in the context of a contested presidential election, it might be significantly more difficult for people to accept a ruling as legitimate and determinative of a presidential election if it’s from a lower federal court. Also, its delay in the context of a contested presidential election can be very costly and very unnerving.
In Bush v. Gore, one of the reasons cited by the majority for bringing that election to an end was the approach of Electoral College deadlines. It illustrates that federal judges like the rest of us are very unnerved by the possibility of instability in a presidential election. And so each one of these potential crisis points carries a cost, which is, in the great game of chicken, that all of these institutional actors play with each other, somebody may lose their nerve because deadlines are perceived to be approaching.
Q: Isn’t there also a possibility that the longer that this stretches out that the Congress itself changes over? And so a lot depends on who’s controlling the Senate and who’s controlling the House and there’s a date certain by which that actually might very well switch. In other words, if the Republicans are no longer controlling the Senate and it’s the Senate that has to weigh in on the vice-presidential question, if we actually get to that stalemate, doesn’t that whole thing change over based on the calendar?
A: Jim Gardner
Absolutely. Yeah. It is in fact going to be the newly elected Congress in November that gets seated and then does the counting. So, yeah, if there’s a change in partisan control of the Senate, or if there’s a change in partisan control of the number of states’ delegations in the House. Yeah, things could be different. Just to add one more thing, so when I was talking before, I spoke about the problem as being a catastrophic failure of the Rule of Law. I think in light of what we’ve been talking about, I want to amend, make it a little more accurate. The problem is that we may… Well, we already face it, which is a catastrophic failure of informal Democratic norms. The procedures are legally messy, but my own feeling is that law is going to have very little to do with it. And the only way there’s going to be an acceptable resolution is if the members of Congress should they have to do this, respect Democratic norms of forbearance and mutual toleration and civility. And that unfortunately is what has been badly frayed in our systems. So, I would say things don’t look good if it gets to that point.
I also think that we have to be realistic about how even if there is a certain set of these nightmare scenarios, that there are going to be some fundamental norms or questions of what kinds of hardball are legitimate, even if completely unprecedented. So one example is, let’s say things are headed where I think we all expect them to go with one candidate decisively winning the national popular vote. Now, of course, we all know that there is no mechanism for that, but if one candidate, let’s say, wins the national popular vote by a decisive majority, it will enable a certain set of moves that are heretofore have not been accepted, but maybe acceptable.
Q: is there also a possibility that there is a challenge to the very fundamental question of succession? So that we don’t end up with interim president NancyPelosi?
A. Jed Shugerman:
Well, a quick answer there is if the Senate would vote for vice-president. As long as the Senate is not 50-50, then we may have a vice president chosen by this process. And that vice president will become the acting president until there was a resolution of the presidential choice.
Q: How long of a process might this be? I mean, with the exception of Bush v. Gore, is there any indication in history of how long we could end up with some temporary stalemate in the transfer of power?
A. Richard Pildes:
Well, the closest analogy we have is this massively disputed 1876 presidential election, so just to give you a little bit of context for that. Back then, the inauguration day was in March, not Jan. 20th. That disputed presidential election was not ultimately resolved until two days before inauguration in March, so four months in that timeframe. In fact, there was a real risk of two competing inaugurations that were going to be held with each candidate, the Democrat or Republican, claiming to have been legitimately elected. We avoided that scenario but barely. In fact, many historians also think that if we had not just come out of a civil war a decade earlier, that election might actually have triggered one, not on the scale presumably of the actual civil war, but genuine violence and real confrontation.
But that’s the closest we’ve ever come, and I worry a little bit about playing out all of these what are ultimately pretty unlikely scenarios in a way that generates tremendous anxiety, primes voters who are already primed to believe on both sides that the election is being stolen or rigged. The most recent polls show that about 25% of both Biden and Trump supporters say the only way their candidate could lose is that the election is being rigged. And so it’s always a delicate line for those of us who talk about these issues, to talk about the various paths and possibilities and work them through without generating tremendous paranoia and anxiety, which also can turn off voters, but prime people to believe that sinister things are going on when they may or may not be going on. And we are obviously in a cultural moment where many, many people on both sides are primed to believe that already.
Q: Is there any constitutional or otherwise law or precedent for an executive who refuses to accept the outcome of an election if it’s clear?
A. Jerry Goldfeder:
We’ve had 10 presidents who’ve run for re-election who have lost, and they’ve always graciously or not so graciously handed over the keys to the White House. That gives us some guidance, that gives us some norms, that doesn’t tell us very much about the personality of the incumbent, but my view is, and I really do want to hear everybody’s view on this because people are concerned about this, is that when all is said and done, he is not the kind of person to withstand the Secret Service, the military, the Congress, the D.C police and the American public. The American public, I believe, wants a normal succession, irrespective of who wins. I think that kind of stability will promote Americans to even mobilize in the streets to make sure there’s a peaceful succession. That’s my view.
Jack Hardin Young:
Yeah, it’s pretty clear that noon, January 20th, 2021 is a hard stop for the term of office. And at that moment, whoever is holding or purporting to hold the presidency is escorted out of the White House as a trespasser. And someone else, as we’ve discussed, someone else becomes the president, whether it’s acting or permanently. But I think the constitutional scheme is pretty clear about how we move on. Now, this all assumes that we have a perfect storm again, a tide or a non-conclusive Electoral College and a state or states where the vote is extremely close and non-determined, which can sometimes, I think last past the Inaugural Day.
I think nobody probably knows what happens in this situation where the officeholder tweets out that he’s not leaving. But in 2017 there was a dispute over who was the appropriate director of the Consumer Financial Protection Bureau. There was an incumbent, the deputy director who was appointed by the outgoing director, and there was a new appointee who both claimed to be the legitimate director. And in a situation that seems a bit hilarious in retrospect, they set up shop in offices down the halls from each other. And I think what’s important for the public to know, is that what ultimately determines the outcome of that is not who tweets what, but who did the staff reach a consensus is a legitimate person from whom did they begin taking orders.
And I think that this is where the deep, deep bureaucracy that we have in this country, which is sometimes malevolently referred to as the deep state by conspirators is in fact a giant body of committed civil servants who respect the Rule of Law and who will respect clear direction about who is in fact the person with that power. This is thankfully not a country in which a single person commands a personal faction that we’ve seen in the way that some other countries have. So in some states, that bureaucracy should be a comfort to all of us, I think.
I’ll just make the obvious point. A decisive outcome puts all of these issues to rest. And if it’s a very close disputed election that turns out a couple of states were in a dangerous place as a country in this political culture that we inhabit, but all of the things that we’re talking about, including the issue you raised I think definitely go away if there’s a decisive outcome in the election.