This election cycle has been filled with historic legal machination and wrangling. Big cases that could determine which candidate wins the key swing states have already reached the Supreme Court. In Wisconsin, Pennsylvania and North Carolina, the Supreme Court weighed in on lawsuits dealing with the deadline to receive vote-by-mail ballots. The court rejected a request by the Democratic National Committee and Wisconsin voters to reinstate coronavirus-related voter accommodations. But in cases in Pennsylvania and North Carolina, the court handed down victories for Democrats, allowing certain ballots arriving after Election Day to be counted.
Meanwhile in Texas, a federal judge rejected a suit by Republicans that sought to invalidate more than 100,000 ballots case in drive-thru voting booths, the latest in a series of decisions in the state concerning how and where and when votes can be counted. That case is now being appealed.
These lawsuits, by potentially impacting the winners in key states, could certainly help determine who ultimately wins the presidential election. Because this election won’t be won or lost nationally — former Vice President Joe Biden may very well win the popular vote, just like Hillary Clinton did four years ago. In 2020, like in 2016, the popular vote will likely be irrelevant. But unlike in 2016, President Donald Trump may try to sow election chaos by capitalizing on pending litigation and state election law. A lot of this confusion may reveal itself via a phenomenon known as the “blue shift,” originally coined in 2013 by election law expert Edward Foley.
The blue shift describes the idea that as the first rounds of votes are counted, some initial returns could look deceptively good for Trump. People who vote early or in person are more likely to be Republicans. But as more votes are counted, the results will shift in Biden’s favor. And in this election, the people who vote later, and by mail, are more likely to be Democrats.
This all sounds simple enough. But we have a president who peddles lies and disinformation, particularly with respect to our election systems. Trump might not accept the evidence behind a blue shift. Instead he could use the shift as (false) evidence to support a narrative that the election is rigged against him. For example, he could say that election officials pushed to steal the election after seeing early returns in his favor or that there were cyberattacks. It may sound far-fetched, but the president has been telling us for a long time that the only way he will lose the election is if it is rigged.
The next problem is that at least some of Trump’s loyal base will believe the president. In addition, Republicans may be more predisposed, in part because of what the president says, to believe there are problems with our election systems. For instance, in September as many as 43 percent of Republicans said they believed that voting fraud is a major problem, despite overwhelming evidence to the contrary.
So, the blue shift term is used to describe the idea that early results on election night could look good for Trump, but as time goes by and more votes are counted, the results may look better for Biden. This is in part because it takes election administration officials longer to verify, and therefore count, mail-in ballots. It goes without saying that more of us will have voted by mail this election because of the pandemic. As of Monday, over 60 million Americans had voted by mail, according to the nonpartisan U.S. Elections Project. By comparison, in 2016, a total of approximately 33 million people voted by mail. In addition, mail-in ballots can arrive after Election Day in states that allow ballots to be counted as long as they are postmarked by Election Day. In some states, laws prohibit the counting of mail-in ballots until Election Day.
If voting disputes do occur (and they will), there will be post-election litigation. We can expect Democrats and Republicans to largely make the same arguments they have been making for the past few days and weeks. Democrats have largely argued for laws making it easier for voters to register, obtain vote-by-mail ballots and return those vote-by-mail ballots. Republicans have generally argued that more restrictive laws are needed to prevent voter fraud, although we know those laws can also lead to voter suppression.
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Post-election, we can expect more of the same, with Democratic lawyers likely arguing that votes are validly cast and should be counted and Republican lawyers likely arguing votes were improperly cast and should be tossed. Fighting these battles in courthouses will lend the air of legitimacy to GOP clams that Democrats are attempting to steal the election by improperly counting votes. These suits could also delay state certification of election results.
Then there’s the issue of the Electoral College. In order to win in the Electoral College, at least one candidate needs to obtain 270 electoral votes. But given all of the potential for litigation and chaos, it is possible that neither candidate reaches 270 votes, or that a state sends two different slates of electors to vote. Again, ongoing litigation could conceivably delay the certification of the state’s popular vote, therefore throwing into question which slate of electors the state should send to the meeting of the Electoral College. In addition, because of Trump’s claims surrounding the blue shift, and his contention that this shows the election is rigged against him, it is possible, although improbable, that state legislatures could end up sending a slate of electors who support Trump to meet in the Electoral College even if Trump did not win the popular vote of those states.
If there is not a clear winner in the Electoral College, the presidential election is decided by the House of Representatives in a contested election. Democrats may cheer this news because Democrats currently control the House, and are likely to maintain control after the 2020 election. However, the U.S. Constitution dictates that each state sends one representative from the House to vote in a contested presidential election. That vote is determined by which party controls the state’s delegation. Right now, Republicans control 26 state delegations, to the Democrats’ 22. But there’s another wrinkle here, which is that any action by Congress would occur after the new Congress is sworn in, meaning that conceivably, a handful of House elections this year could determine the president.
And there you have it. The blue shift, a phenomenon we know about and expect will occur, could allow Trump to create enough pandemonium and misperception to keep power. Happy voting (and vote counting).