How the result of the 2020 US election could be contested in a way like no other in living memory

Volunteer election poll worker Cecilia Chaboudy-Dow joins demonstrators as they stand across the street from the federal courthouse in Houston, Monday, Nov. 2, 2020, before a hearing in federal court involving drive-thru ballots cast in Harris County.
A volunteer poll worker outside a court in Houston, Texas, ahead of a hearing brought by conservative activists looking to invalidate nearly 127,000 votes in the state because the ballots were cast at drive-through polling centres during the pandemic. Credit: AP

There are few things more exciting in journalism than an election night, and the events of this one in particular might just be the most keenly anticipated of my lifetime.

With shops and premises all over America boarded up and the White House with a new fence around it that looks designed to withstand a siege, it is clear we live in unprecedented times. It is hard to shake the sense that it is not just two candidates on the ballot tonight, but the nature of American democracy. For the last four years, the country that is still the standard-bearer of liberty in the free world has been on a decidedly erratic path, sometimes difficult for outsiders to understand.

But Trump’s continuing appeal to millions of Americans is not in doubt. The more pertinent question is what four more years would mean for the rest of us. But before we get to that, we have this election to deal with, and most particularly the idea that it could be ‘contested’ in a way none has been in living memory.

Shops in cities including New York are being boarded up ahead of the election. Credit: AP

To understand the potential seriousness of this situation, you have to go back to the foundation of the Republic itself. The framers of the Constitution had a number of key concerns, but one was how people across America - in the days before mass communication and travel - would know who the presidential candidates were.

So they decided that each state would send ‘electors’ who would then pick a president. And that is pretty much all they concluded.

The Constitution does not specify how states should pick their electors, though all did in the end conclude that they should be chosen by a popular vote within the state and most (though not all) opted for a winner takes all system. So there is in fact no national vote at all for President, and certainly no right for one. Win the popular vote by 1 in Florida, say, and you get all 29 electors the state has to offer. Win 270 electoral college votes in all (out of 538) and the presidency is yours.

So it is possible to win the presidency whilst losing the national popular vote, as Trump did (the same could be said in the UK, of course), but this is not the only issue with the US system. And this year, there is a real chance its flaws could be dangerously exposed. To understand why, it is best perhaps to wind forward from the work of the original founders of the Republic to 2000. Then, Al Gore won the national popular vote, but lost the electoral college by being less than six hundred votes behind his rival George Bush in Florida.

Some of the Miami ballots were disputed and the Democrats under Gore won the right to a recount. The Republicans staged a protest outside the recount and brought it to a halt. The (conservative dominated) Supreme Court decided the recount should be permanently halted and Bush won the presidency.

Al Gore supporters in Florida in 2000 protesting the US Supreme Court decision to stop the manual vote recount in the state. Credit: AP

So when Donald Trump says he may not accept the result, there is some method in his madness (though it is also possible he just cannot contemplate the possibility of defeat). This year, as a result of the pandemic, there is a huge rise in the number of mail-in in ballots. Every state has different rules and some of them have been altered to make voting easier in these circumstances. But is generally accepted that Democrats vote in greater numbers by mail than Republicans, so in the crudest terms, the more mail-in ballots that can be ruled invalid, the better for the President. There have already been more than 300 legal cases around this and to give you one example of what might be at stake, take a look at Pennsylvania, which may end up being the key swing state if it is close on the night. There, you have to put your mail-in vote in a ‘secret ballot’ envelope.

Some experts estimate that up to a hundred thousand voters may fail to do so. So if Mr Trump were to win the state and the Presidency by ten thousand votes, but many more than that were ruled invalid, where would that leave American democracy? And this is where it gets really interesting. In a close election, we could find that these legal actions drag on for weeks, with no clear public acceptance of who is ahead and who should be. So what would happen if, say, the Democrat Governor of a state decided his or her party had won and sent their electors to the electoral college - but a Republican controlled state legislature disagreed and sent its own? Many experts feel the Constitution offers no easy answers on this, and would it really be for the Supreme Court to decide? It is why millions of Americans - buying guns in record numbers and boarding up their premises across the country - are praying for a decisive victory tonight, one way or another.

Tom Bradby presents Trump vs Biden: The Results on Tuesday from 11pm on ITV and itv.com/news

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