Harris v Trump may be remembered as the ‘litigation election’ – the world will be hoping it’s settled on the night
Adam Boulton warns of the risk of uncertainty and unrest if there is not a clear result on US election night or shortly afterwards. If the outcome is disputed, expect legal fights and a bumpy transfer of power.
Politicians and people around the world are holding their breath to see who wins the US presidential election on Tuesday. Will it be a second term for the Republican Donald Trump? Or victory for the Democrat Kamala Harris, who would be the first woman POTUS, and only the second person of colour?
Unlike in the UK where a prime minister can be kicked out of Downing Street overnight after a general election, there will be a transition period. The next president will not take office until Inauguration Day – 20 January 2025.
But when will we know who the next president will be? Recent precedents suggest we may not know on the night after polls close but some days or even weeks later – especially if the result looks close this time, as has been widely predicted.
Recent delays – and what used to happen
In 2000, election day was 7 November but George W Bush did not become president-elect until 13 December. That was when his Democratic opponent Al Gore conceded after the US Supreme Court overruled the Florida Supreme Court, by 5-4, to halt a recount in what was then a swing state.
We will never know who really got the most votes in the Sunshine State – there were probably a few hundred votes in it.
It is a matter of record that Florida gave Bush victory in the Electoral College by 271 to 266, although Gore got half a million more votes than him nationwide.
At the last election in 2020, it was not until the Saturday after the Tuesday vote, four days later, that I was able to “call” the election for Joe Biden on Sky News, along with other major news networks.
Donald Trump still insisted that he had won. His supporters launched multiple legal challenges to try to overturn results in swing states such as Pennsylvania, Georgia and Arizona. They failed but on January 6 2021, a violent pro-Trump mob stormed the US Capitol in an event to prevent vice president Mike Pence from certifying the result officially as a victory for Biden.
Despite these examples in recent years, in modern US elections, the winner has most often been known a few hours after counting starts.
By convention, the result is accepted all round once one of the two candidates concedes defeat and when the Associated Press (AP), America’s 170-year-old impartial wire service, “calls a winner”.
AP will be calling a total of 5,000 election results next week. It estimates there could be evidence of a clear presidential winner around seven hours after counting starts on the Eastern seaboard – around 1am in Washington DC and 6am in London on Wednesday 6 November. That will only work if Harris or Trump is running comfortably ahead in election returns across the nation.
If it looks like Trump has won outright, Kamala Harris can be expected to concede in the small hours, just like Hillary Clinton in 2016. A shocked Mrs Clinton phoned an equally surprised Trump to congratulate him and then made a formal concession speech to her supporters a few hours later.
Close race could end up as the ‘litigation election’
Trump has said “I want a landslide” this time. He has also promised: “If I do [lose] and it’s free and fair absolutely I will accept the results.” We shall see. He did not concede in 2020 and still insists, falsely, that he won then. Amazingly a majority of Republican voters say they agree with him.
All the polls suggest this will be a very close election. If Trump looks like losing narrowly because one or two swing states go against him, he will do what he can to spread distrust, to delay Harris being declared winner and, ultimately perhaps, to overturn his defeat at the polls.
That is why insiders are calling this the “litigation election”. Both sides are assembling massive legal teams ready to fight it out. The Trump campaign is recalling conservative attorneys who acted for him in 2020. It claims to have 230,000 volunteers on the lookout in swing states.
To head up her legal team Harris has recruited Dana Remus, a former White House counsel and Marc Elias, a tough litigation lawyer, who has won cases opening the door for Democrats to have their own “dark money” for legal cases to counter the cash from pro-Trump billionaires such as Elon Musk.
Of course, if Harris is narrowly defeated and the Democrats suspect foul play, the Democrats could also challenge some results. Unlike the Republicans, however, they have not openly discussed this as a tactic to snatch victory by the back door.
Trump and his supporters are laying the ground for mistrusting the outcome this year. They are already alleging “cheating” and “voter fraud” in early voting. They are claiming in advance that this is a “rigged election” against them.
More than 200 legal suits have been filed involving voters’ identity, mail-in voting, voting machines, foreign interference and intimidation.
Voters have to be US citizens. This year complaints by Trump supporters are focusing on allegations that illegal immigrants are managing to cast ballots.
2020 was a chaotic and improvised dry-run which exposed the tactics which could be used to challenge another Trump defeat. The Republicans are better organised this time.
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The hurdles between the election and inauguration
There are options to overturn or stall the process at each stage in the weeks leading up to the inauguration.
Each state has until 11 December to certify the results. Stopping this could be done either by successfully alleging that voting has not been conducted properly or that ballots were cast by people ineligible to vote. But none of Trump’s complaints about voting irregularity were upheld in 2020.
Local election boards could also refuse to certify results. This used to be unknown in America but it has happened more than twenty times across eight states since 2020.
However, federal law has been reformed so that state governors alone have the final power to certify, unless a court rules otherwise, with Congress obliged to treat their certifications as conclusive. So far even Republican governors have gone ahead with certification.
Read more:
Six paths to power – and why one state matters most
The real Harris: Her powerful ex and clash with the police
Is Biden’s garbage gaffe as bad as Clinton’s 2016 mistake?
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Technically the votes cast by the electorate matter because they determine on a state-by-state basis who makes up the Electoral College which “elects” the president. It has 538 members – so a candidate needs 270 to win. All but two states allocate their electors on a winner-takes-all basis, to the candidate who gets the most votes in their state.
If neither candidate reaches the 270 mark and the Electoral College as a whole cannot complete certification, the general election result is void. The House of Representatives elects the president in a so-called Contingent Election.
This takes place on a one-vote-per-state basis. The Republicans control more state delegations now and are likely to do so after next week’s election. In a Contingent Election, the 100-member US Senate elects the vice president – who could come from the other party.
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Then comes the fateful date of 6 January when the vice president and the newly elected Congress meet to certify the new president. Assuming Harris, say, had avoided a Contingent Election, it is still possible that a Republican majority Congress could refuse to certify her victory, even though as outgoing vice president she will be in the chair. This presumably is what Trump was referring to during his Madison Square Garden rally when he said he and Mike Johnson, the Republican Speaker, have “a secret… I’ll tell you what it is when the race is over”.
If the election result is contested, legal proceedings at every level are a certainty.
Should the argument reach the conservative-dominated US Supreme Court all the indications are that Trump will get a sympathetic hearing; he appointed three of its members.
In the meantime, if there is uncertainty about the result which drags on, there is a risk of widespread civil unrest.
That is the best reason for hoping the US presidential election is settled on the night or very shortly afterwards.
