Speaker Nancy Pelosi was correct when she recently said that the best way to avoid a disputed election is for the result to be a blowout. But that is a hope, and we need a plan. If the midterm elections are any indication, the number of states with razor thin majorities is increasing. With partisan distrust on the rise, the result could be a constitutional standoff, a loss of democratic legitimacy for the outcome, and even violence stemming from anger. We need to agree in advance on procedures for resolving electoral disputes that determine the winner of the presidential election next year.

No neutral referee presently exists. The Constitution gives Congress the role of declaring the winner of the presidential election. But Congress, being bicameral, cannot perform this important role if the Senate insists that Donald Trump won, while the House is equally adamant that the Democratic candidate did. Congress, being ever more partisan, stands institutionally incapable of resolving an election contest in a way that supporters of the losing party will view as legitimate. The closer it gets to Inauguration Day, the more precarious this kind of stalemate becomes.

If anyone doubts this event, they should look up the 1876 election, when Ulysses Grant prepared contingency plans for martial law to prevent two inaugurations occurring simultaneously. That crisis was diffused just in time because Speaker Samuel Randall forced hardliners in his own party to back down. Would Pelosi or Senate Majority Leader Mitch McConnell do the same to put “country over party” if faced with a similar situation?

To avoid that predicament, Pelosi and McConnell should jointly create a neutral referee to advise them, starting on Election Day, about any vote counting disputes that might arise once the polls are closed and the tabulating of ballots begins. In 2018, we saw some alarmist rhetoric over the normal process of counting the provisional and absentee ballots while preliminary tallies were being verified. Were that same agitation to occur in 2020, a neutral referee to counsel the two congressional leaders could help calm a jittery atmosphere and prevent partisan suspicions from spinning out of control. If, based on the advice of their neutral referee, Pelosi and McConnell jointly announce the election over, then it is over.

We have thoughts on how to pick a neutral referee. Pelosi and McConnell could each choose one member of a panel of three people, and their two choices could pick the third person. This selection approach, modeled after private sector arbitration, is indeed the simplest method for finding a fair umpire whom both sides will find acceptable. Minnesota has used a version of this approach to settle some contentious statewide elections.

But whatever method Pelosi and McConnell prefer, their chosen election umpire should be ready before counting ballots begins. They should also pledge to accept the findings of the neutral arbiter unless both can agree otherwise, which maintains the bipartisanship of their arrangement. They could make this commitment formal by putting it into legislation, but that step is unnecessary. As long as these two party leaders stick to this deal, they can then achieve the closure needed for a successful inauguration.

Once in place, the neutral referee could be used to help resolve any significant dispute that might arise in a congressional, and not just a presidential, election. Control of the Senate itself might be at stake in 2020, and there is no neutral mechanism for breaking a deadlock that might occur in that situation as well. But what about the federal courts? Could Congress rely on the judiciary to resolve these major disputes?

The answer is that the Constitution lodges final responsibility for federal elections in Congress. The case of George Bush versus Al Gore ended at the Supreme Court only because Gore had declined to take his case to Congress as his advisers were urging him to do. Ronald Klain, one those advisers, recently observed that there is no guarantee of a dispute in 2020 stopping after a court decision. Congress needs to be prepared.

Despite Chief Justice John Roberts previously assuring to the American public that there are no “Obama judges” and no “Trump judges,” that proposition is simply unreliable in lawsuits involving important electoral outcomes. Much of the crisis of 2000 was caused by the partisanship of the Florida Supreme Court. Whatever the challenges, this truth remains that a high stakes recount, especially in a presidential race, is a game not to be played without having some sort of acceptable referee on hand.

This article originally appeared on The Hill

Edward B. Foley

Reporter, Principles of the Law, Election Administration

Edward Foley (known as “Ned”) directs Election Law @ Moritz at Ohio State University, Moritz College of Law, where he also holds the Ebersold Chair in Constitutional Law. His book, Presidential Elections and Majority Rule (Oxford University Press, 2020), excavates the long-forgotten philosophical premises of how the Electoral College is supposed to work. His 2016 book, Ballot Battles: The History of Disputed Elections in the United States, was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must-read books about law and social justice.” While Foley has special expertise on the topics of recounts and provisional ballots, he has also co-authored the casebook, Election Law and Litigation: The Judicial Regulation of Politics (Aspen 2014), which covers all aspects of election law.

Michael W. McConnell

Stanford Law School

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. 


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