Wednesday, October 28, 2020

How Likely is an Election Meltdown? The Importance of Down-Ballot Races

Stephen Griffin

Now that President Trump has gone there in terms of saying he hopes that counting ballots will stop on Election Day, I wanted to post a short note to raise the possibility that commentary on possible election meltdowns has been ignoring the significance, legal and otherwise, of down-ballot races.  There are many election meltdown scenarios, of course.  One that I've heard from students as I've been teaching an election law course this semester revolves around the possibility of the count being stopped somehow after Election Day.  Trump says that it should be done by the courts, although I'm not sure how that would happen.

But consider the legal impact, not only on voters who would not have their ballots counted (for what reason?) but on the literally thousands of candidates who are also on the ballot with Biden-Harris and Trump-Pence.  Of course, the entire House of Representatives is up for reelection, along with one-third of the Senate.  In addition, according to Ballotpedia, 86 of the 99 state legislative houses are also on the ballot, along with many state judge races and important ballot propositions.  Wouldn't it be important to those candidates to have a full and complete count of the vote?  Would they not have causes of action in federal court if there is any arbitraray stopping of the count contrary to law?  And if that is important, would it not be difficult to somehow stop the count for one federal race while keeping the count going for down-ballot races?  And if all of this seems ridiculous, have we not debunked one meltdown scenario?

I'm interested to hear otherwise (see email to the left), but it seems to me that the "stopping the count" scenario which Trump has just raised is one of the least likely.  The count is going to continue according to law in each state until it is done.  More is going to be needed to trigger the more dire meltdown scenarios (reviewed today by Tom Edsall in the NYT).

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