The State Laws That May Decide a Disputed 2020 Election

The White House (APK, https://commons.wikimedia.org/wiki/File:White_House_DC.JPG; CC BY-SA, https://creativecommons.org/licenses/by-sa/3.0). As the 2020 presidential election grows nearer, anxiety over the possibility of a disputed election has reached a fever pitch. And no one has done more to stir this anxiety than President Trump himself. For months, he has inveighed against the mail-in ballots that a substantial number of (disproportionately Democratic) voters are expected to use, leveling unsubstantiated claims of voter fraud and electoral insecurity. Most recently, he even suggested that he might be unwilling to peacefully accept if he were to lose on account of those ballots, raising the prospect that he and his supporters might use an election dispute as a pretext for remaining in power, no matter the election results. The truth, however, is that the president isn’t going to be resolving any disputes that may arise in the 2020 election. Nor, for that matter, is it likely to be up to Congress or the federal courts, at least in the first instance. Instead, in the United States, those questions are presented first and foremost to the states for resolution—and that makes them the first line of defense in preventing an electoral dispute from becoming a full-fledged constitutional crisis. Under the Constitution, each state appoints presidential electors “in such manner as the Legislature thereof may direct,” giving state legislatures broad authority to define through state law how that state’s electors should be allocated. Consistent with this broad authority, Congress has given the states a similarly central, though not exclusive, role in resolving presidential election disputes. Since 1887, federal law has contained what the Supreme Court has described as a “ safe harbor ” provision, which provides that the results of any state legal procedure for resolving disputes over the allocation of electors—judicial or otherwise—established in state law prior to Election Day shall be “ conclusive ” in determining how electors are to be allocated from that state. The only requirement is that these procedures must be concluded at least six days before the date that Congress sets for the national electors to meet, namely the first Monday after the second Wednesday in December (which this year is Dec. 14). If the states don’t resolve the disputes in question, then Congress itself may step in to determine which electors should be accepted using its own convoluted and somewhat unclear process . But states get the first bite of the apple. For this reason, we’ve spent the past few weeks canvassing relevant provisions of state law in order to identify how any such dispute is likely to be resolved. And now we’re sharing the results with Lawfare readers so that you can have a better understanding of what may come if and when an electoral controversy arises. We started with the 15 states that the Cook Political Report rates (as of Sept. 29) as “toss-up” or “lean” states in the 2020 presidential election on the logic that those disputes are more likely to be able to change or sow doubt regarding the final results in a tight race. (Note that two states—Maine and Nebraska—award an electoral vote to the plurality winner in each of their congressional districts, and the remainder to the plurality winner statewide. While only one congressional district for each is included in this list, we’ve included rules for the state as a whole.) For each, we examined statutes relating to election disputes, recounts and vacancies for the presidential election. We also examined the same for congressional elections, on the logic that the composition of the new Congress could play a central role in determining the new president if state procedures fail to resolve any disputes or if no candidate captures a majority of electoral votes. To best understand how these congressional election-related rules might impact the 2020 election, we’ve included some basic information on what electoral votes and congressional seats are up for grabs and who holds the key state offices that most often play a role in resolving election controversies, namely the governor and secretary of state. Finally, we’ve also included links to related posts about pandemic election challenges in swing states written as part of the Healthy Elections Project that Lawfare is hosting in connection with Stanford University and Massachusetts Institute of Technology. The results of this survey underscore the diverse approaches that states take in approaching these questions. Some states have developed extensive dispute resolution proceedings that seem implicitly (if not expressly) intended to qualify for the “safe harbor” provided by federal law. Other states, however, do not define any special procedures and instead seem to defer to the dispute resolution mechanisms that federal law provides, both for disputed presidential elections and for disputed elections for House and Senate seats. Which of these laws and procedures, if any, will be implicated by the 2020 election is impossible to predict in advance. But examining them underscores just how many off-ramps may exist before a disputed election even reaches the federal system—but also how complex the state-level mechanisms may prove to be in their own right. Of course, precisely because these state election laws are so complicated, it’s entirely possible that we missed or misinterpreted something. Find an error or omission? Write to us , and we’ll update our post accordingly. Lean Democratic States Toss-Up States Lean Republican States Arizona Michigan Minnesota Nebraska (2nd District) Nevada New Hampshire Pennsylvania Wisconsin Florida Georgia Iowa Maine (2nd District) North Carolina Ohio Texas Arizona Read the entry on Arizona’s 2020 elections from the Healthy Elections Project series here . Arizona has 11 presidential electors, nine House seats and one Senate seat up for election in 2020. The current governor is Doug Ducey (R), and the current secretary of state is Katie Hobbs (D). Presidential and Congressional Election Disputes. Arizona state law permits any registered voter to challenge the results of a statewide election or “question or proposal submitted to vote of the people” upon any of the following grounds: Election officials engaged in misconduct. The winner of the election was not an eligible candidate. Candidates engaged in misconduct (such as seeking to bribe or otherwise influence election officials). Illegal votes were cast. Officials incorrectly tallied the votes. A voter must file a challenge within five days of the secretary of state or governor announcing the election results. The challenge must be filed in the superior court of either Maricopa County — which includes the state capital of Phoenix — or the county in which the voter resides. The judge of the superior court has 10 days to arrange a hearing, and then must decide whether to confirm the results of the election or annul and set aside the results. If a judge determines that a candidate other than the declared winner has in fact received the most votes, the judge will declare that candidate the winner. Otherwise, he or she may annul and set aside the election results, triggering a vacancy. Arizona case law sets a high bar for voters challenging the results of an election. In the 1986 case Moore v. City of Page , the Arizona Court of Appeals ruled that judges must draw all reasonable presumptions in favor of validity of an election. And Arizona case law has long held that a challenger must prove fraud by clear and convincing evidence; slight irregularities will not suffice. While experts have noted that these provisions do not expressly address elections for federal office, an Arizona superior court jud
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