Americans are used to getting election results the evening of Election Day, soon after the polls close. But historically, results weren’t declared on Election Day at all. It’s only been in the last 40 years, with the advent of TV news, that organizations have “called” the election on the night of voting, and that “call” is not official. Official results cannot be certified on the day of the election, since all votes have to be counted and the Electoral College process needs to unfold— and, at times, as in 2000, the results might be contested.
So what does it mean to contest the results of a presidential election in the courts? How could the process end up in the Supreme Court, and what are the implications of that possibility?
Two U-M experts in the litigation of election results held a lively conversation to answer those questions during a Democracy & Debate Theme Semester virtual event that took place as ballots were still being counted in several states Wednesday, and President Donald Trump’s campaign was pursuing and filing lawsuits in some states, including Michigan.
Michigan Law’s Frank G. Millard Professor of Law Samuel Bagenstos and Ralph W. Aigler Professor of Law Ellen Katz discussed the process of certifying the vote, and provided background and context about what happens when courts get involved in presidential elections.
The ballot counting process always takes time, they said, but noted that the COVID-19 pandemic added complexities this year. Katz said that it was important to keep in mind the changes the pandemic created for existing election law, which has given rise to some litigation. They also reviewed how the Electoral College works before diving into details about the federal court’s role in litigating election results.
“Announcements of winners on election night are always projections—not certification of winners,” Katz said.
“The counting always goes on afterwards. It goes on in roughly half of the states that still accept ballots after Election Day, but even in the states that have a firm cutoff on Election Day. Counting continues in various places and we’re seeing that going on right now.”
Bagenstos explored the intricacies of disputing election results in the courts and shared potential scenarios of what could occur.
“There is this lingering issue, which could end up getting fought out in the federal courts and the Supreme Court, whether a state supreme court has the power to interpret a state constitution to override a state statute with regard to presidential elections,” he said, noting that this question has been floating around since the contested Bush-Gore election in 2000.
They answered questions from the 300 viewers including what legal ground there is for mail-in ballots to be challenged, what the Trump lawsuit against Michigan is all about, and what the pros and cons are of the Electoral College.
They wrapped up the hour-long conversation by sharing how impressed and encouraged they are by their students who are pushing forward to strengthen voting rights.
“Even if you feel uneasy at this moment, I do sense that this is part of an ongoing process that we will always be working on to make elections more fair and increase access for people who are encountering obstacles. I know [our students] are going to keep fighting for these things,” Katz said.
“We have the best students at Michigan, I really mean that,” Bagenstos added.
“In the sense that people who are just so incredibly smart and engaged, and really care about the world and about using the skills that we’re giving them to go out and try to fix the things that need fixing in the world. It’s really amazing.”
