On the potential for a contested election result
Blyth: Three-fifths of me expects to wake up with this heading toward the Supreme Court. One of the features of the U.S. Constitution, an independent judiciary that was nonetheless partly appointed by politicians or elected on a party label, has now turned into a bug. Having figured out that this bug is their best hope of hanging on to power, the GOP will use it to the fullest extent.
Arenberg: If the presidential contest is at all close in key battleground states, I expect challenges to develop in the courts and perhaps on the streets. Without any evidence, the president has repeatedly raised doubts about the validity of mail-in votes, currently being cast by millions of Americans. At numerous rallies, he has declared, “…the only way we're going to lose this election is if the election is rigged.” The president has refused to commit himself to a promise of peaceful transition of power should he lose. This represents a break with all of prior American history. As a result, we should be prepared on Nov. 3 to discover that the outcome of the election is not yet certain. Delays in the counting process are likely in some states.
If the race is at all close, substantial delays are possible. While there are a number of deadlines imposed by federal law as a part of the Electoral College process, the ultimate deadline is created by the Constitution. The 20th Amendment states: “The terms of the President and the Vice President shall end at noon on the 20th day of January…”
While I remain optimistic that the margin of victory will be large enough to dictate a more normal process, all Americans should remain vigilant. Unlike any election in our lifetimes, we cannot take the election process in our democracy for granted.
Brettschneider: The peaceful transfer of power defines a constitutional system, so questions about whether Donald Trump will participate in a peaceful transfer of power go to the heart of constitutional democracy governed by the rule of law.
The second article of the Constitution outlines verbatim only one oath of office. The president must say, "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
That oath used to play a huge role in American politics. The only thing George Washington said in 1793, in the shortest recorded inaugural address in history, was essentially, “If I fail to respect the oath, what I want you to do is subject me to upbraidings and criticism — or if I really fail to respect it, I want you to subject me to constitutional punishment.”
For a lot of American history, the oath really didn’t matter, and the Constitution wasn’t a central question in American politics. But it certainly matters now.
I think it’s more likely that if Donald Trump does contest the results of the election, he’ll contest the results in court. And I’m not convinced that the arguments he is already making would fail to resonate there. Let’s remember that justices Kavanaugh, Roberts and Barrett played a role in determining the outcome of the 2000 presidential election. The ultimate question is whether, in contested states, there’s a deference to partisan secretaries of state or a demand to count ballots. If it’s the former, it’s more likely the result favors Trump.