Ballotpedia's 2020 Election Help Desk Newsletter
Welcome to Ballotpedia's Election Help Desk Newsletter. In each issue, we:
- Detail the changes to election dates and procedures since our last edition
- Track lawsuits from the presidential campaigns and major political parties
- Answer one frequently asked question about the election
- List upcoming election process dates and deadlines
We understand you may have questions about what to expect in elections at all levels of government, from the casting of ballots to the certification of final results. We are dedicated to providing you with accurate, objective, and measured answers to those questions.
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Recent news
Here are the changes made to election dates and rules since our last edition, including legal decisions, executive actions, and legislation.
Roundup
- Alabama: On Oct. 13, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reversed a district court order suspending the state's witness requirement for absentee/mail-in voters with underlying medical conditions. The panel also reversed the lower court's order waiving photo identification requirements for voters 65 and older. As a result, the witness and photo ID requirements have been reinstated.
The panel included Judges Adalberto Jordan, Jill Pryor, and Barbara Lagoa. Jordan and Pryor are Barack Obama (D) appointees. Lagoa is a Donald Trump (R) appointee.
On Sept. 30, Judge Abdul Kallon, of the U.S. District Court for the Northern District of Alabama, issued the ruling that waived the aforementioned requirements. Kallon, an Obama appointee, also lifted the state's prohibition against curbside voting. The Eleventh Circuit upheld that order, allowing curbside voting to proceed.
- Alaska: On Oct. 12, the Alaska Supreme Court affirmed a lower court's order suspending the state's witness requirement for absentee/mail-in ballots.
On Oct. 5, Superior Court Judge Dani Crosby ruled "application of the Witness Requirement during the pandemic impermissibly burdens the right to vote." Alaska law requires a notary or an adult witness to sign ballot return documents. The plaintiffs in the original lawsuit–including the Arctic Village Council and the League of Women Voters of Alaska–argued that they and other voters "should not be forced to choose between risking exposure to COVID-19 through complying with the Witness Requirement or forgoing their right to vote."
The defendants (state officials, including Lt. Gov. Kevin Meyer (R) and the director of the elections division) said the plaintiffs "waited too long to seek relief from the court and that the doctrine of laches requires the court to dismiss their complaint." Under the laches doctrine, a party is not entitled to pursue a claim if the plaintiff has "unreasonably delayed in bringing the action."
The state supreme court did not explain its reasoning in its Oct. 12 order, saying that a full opinion is forthcoming.
Lawsuits
To date, we have tracked 318 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. Click here to view the complete list of lawsuits and court orders.
Here's the latest on noteworthy litigation. Examples of noteworthy litigation include, but are not limited to, lawsuits filed by presidential campaigns and major political parties, and cases decided by state supreme courts.
- Texas: On Oct. 12, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously upheld Gov. Greg Abbott's (R) order restricting the number of absentee/mail-in ballot return locations to one per county.
On Oct. 9, Judge Robert Pitman of the U.S. District Court for the Western District of Texas blocked Abbott's Oct. 1 order. On Oct. 10, Attorney General Ken Paxton (R) filed an emergency motion to block Pitman's order from taking effect. Later on Oct. 10, the Fifth Circuit panel granted Paxton's motion. The Fifth Circuit's Oct. 12 ruling extended its Oct. 10 order.
The panel included Judges Don Willett, James C. Ho, and Stuart Kyle Duncan, all of whom are Donald Trump (R) appointees. Writing for the court, Duncan said, "Leaving the Governor's October 1 Proclamation in place still gives Texas absentee voters many ways to cast their ballots in the November 3 election. These methods for remote voting outstrip what Texas law previously permitted in a pre-COVID world. The October 1 Proclamation abridges no one's right to vote."
Today: What happens if presidential election results are inconclusive?
The Help Desk daily feature will answer one frequently asked question or provide a summary of key election dates and policies each day.
Today we take a look at what could happen if presidential election results are inconclusive. Many post-election scenarios that are being considered have never been litigated in the courts. Thus, discussion about the possible outcomes of the unpredictable scenarios are, in many ways, just speculation, and there is no exact certainty about what might happen should any of these scenarios play out. That said, the start of any process would depend on why the results are inconclusive. We’ll look at two different scenarios below.
Who is the president if election results are unknown by Jan. 20, 2021?
The current presidential term ends on Jan. 20, 2021. As of that date, President Donald Trump (R) and Vice President Mike Pence (R) will no longer hold those offices unless they have won re-election. If the results are unknown by Jan. 20, 2021, the presidential line of succession established in 3 U.S. Code § 19, part of the Presidential Succession Act of 1947, would take effect. Who would serve as president after that would depend on whether a new Congress is sworn in, which is scheduled to happen on Jan. 3.
If a new Congress has been sworn in, the next in line would be the Speaker of the House of Representatives, currently Nancy Pelosi (D). If Rep. Pelosi is re-elected to the House and re-elected Speaker of the House, she would serve as acting president until the election is decided.
If a new Congress has not been sworn in by Jan. 20, there would be no serving House. There would be a partial Senate, however, made up of the 65 senators whose seats were not up for election. After the speaker of the House, the next in line to serve as president is the president pro tempore of the Senate. In a partial Senate, Democrats would hold a majority with 35 seats and control the chamber based on the seats not up for election in 2020. The most senior member of the majority party—Sen. Pat Leahy (D-Vt.) in this scenario—would become president pro tem and serve as acting president.
Read more about these scenarios here.
What happens if there is a tie in the Electoral College?
Although it has never happened, it is theoretically possible that the 538 electoral votes could be evenly split between two candidates, resulting in a 269-269 tie. According to the 12th Amendment of the U.S. Constitution, the newly-elected House of Representatives would determine the winner. The House would also decide the election if no candidate receives a majority of electoral votes. The Senate would select the Vice-President.
To select the President, the House may choose from the three candidates who received the most electoral votes for President. Each state delegation in the House would cast one vote, with a majority of votes (26) needed to win. The District of Columbia does not cast a vote. If necessary, the House will continue to vote until one candidate receives a majority. This process has a Constitutional deadline of March 4. If the House does not select a new President by March 4, the Vice President-elect serves as acting President.
While the Democrats have a 232-198-1 majority in the House before the election, Republicans would have a majority of state delegations. If the current partisanship breakdown carries over into the next Congress, Republicans would have a 26-23 majority of state delegations, with Pennsylvania split 9-9. If Pennsylvania's delegation cannot agree on a presidential choice, it will not be allowed to vote.
To select the Vice President, the Senate may choose between the two candidates who received the most electoral votes for Vice-President. Each Senator casts a vote, with a majority of votes (51) needed to win. Due to these separate votes, it is possible that a President and Vice President from different parties could be elected.
Read more about this scenario here.
What we’re reading today
Upcoming dates and deadlines
Here are the key deadlines for voter registration, early voting, and absentee/mail-in voting coming up in the next seven days. For coverage of all dates, deadlines, and requirements, click here.
- Voter registration deadlines:
- October 14:
- Wisconsin (mail-in postmarked, online)
- October 16:
- Nebraska (mail-in postmarked, online)
- October 18:
- October 19:
- Alabama (in-person, mail-in received, online)
- California (mail-in postmarked, online)
- Maine (mail-in received)
- Michigan (mail-in postmarked, online)
- Pennsylvania (in-person, mail-in received, online)
- South Dakota (in-person, mail-in received)
- Wyoming (in-person, mail-in received)
- Early voting begins:
- October 14:
- Kansas
- Rhode Island
- Tennessee
- October 15:
- October 16:
- October 17:
- Massachusetts
- Nevada
- New Mexico
- October 19:
- Idaho
- Florida
- Alaska
- Arkansas
- Colorado
- North Dakota
- October 20:
- Absentee/mail-in voting request deadline:
- October 13:
- Rhode Island (in-person, mail-in received)
- October 20:
- Maryland (in-person, mail-in received, online)
- Nevada (in-person, mail-in received)
- New Mexico (in-person, mail-in received, online)
- Absentee/mail-in voting return deadline:
And a dose of calm
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