Election could be muddled by 'almost unintelligible' election law: constitutional law professor
Joe Biden and Donald Trump (Photos: Shutterstock)

A constitutional law professor is sounding the alarm about an obscure provision in the election law that creates ambiguity that could cause confusion if the election is close in November.


RollCall cited Edward Foley, director of Ohio State University's election law program, cautioning that a 133-year-old law that has never been used to settle a disputed election has "almost unintelligible" guidelines.

As the election draws closer, questions are being asked about the likelihood of President Donald Trump disputing the results of the election if he loses.

Section 15 of the Electoral Count Act of 1887 creates a contrast if a state submits two different election results, and the House and Senate disagree.

"Imagine the vote in Michigan comes in on Election Day with Trump ahead, but there are still a lot of uncounted absentee ballots that either came in that day, were post-marked that day but still beat the deadline, or there was a change because of COVID-19 to allow them to arrive in the days following Election Day," RollCall cites in a hypothetical scenario.

"There could be a historic number of mail-in ballots because of the pandemic," the report continued. "More states are expanding vote-by-mail opportunities for those who want to avoid crowded polling locations on Election Day, and the lawsuits across the country are addressing the timing of counting absentee ballots. Let's say most of those absentee ballots are from urban centers such as Detroit with heavy Democratic contingents. Trump could start claiming victory in Michigan based on his lead in the results from polling places, and raise questions about the legitimacy of the absentee ballots and the potential for fraud."

Given that the president and allies at Fox News are already warning of a rigged election six months prior to the election, it isn't a far fetched possibility.

Counting absentee ballots after the election could then put Trump's challenger, former Vice President Joe Biden, in the lead. That could create a contested election, putting in motion the conflict.

"Michigan's Democratic secretary of state and governor would assign electors based on the popular vote that Biden won," described RollCall. "But the Republican-led legislature, if it grabs on to arguments the popular vote was fraudulent or otherwise problematic, might claim it has the authority to assign its own slate of electors."

There has never been a case in history in which a legislature attempted to overrule the vote, but after watching what happened in Wisconsin during the primary election, it isn't out of the realm of possibility. At the same time, Trump appears to be so desperate to hold onto his presidency; he could demand state legislatures take the historic action for the first time in history, in an electoral power-grab.

"While no legislature has ever tried to seize that authority after an election takes place, Foley points out that the Florida legislature tossed around the idea in the 2000 election aftermath," the report said. "In the Michigan example, then, both sets of electors meet and send the results for Congress to tally. That's when the muddled language of Section 15 might kick in."

The House and Senate would then clash over which count to accept, with the GOP-led Senate supporting Trump and the Democratic-led House supporting Biden.

During Reconstruction, after the Civil War, Southern states ultimately had conflicting authorities, the Congressional Research Service recalled in their 2001 report.

"Several states forwarded to Congress in 1876 different and competing slates of electors, which threw the presidential election into confusion and partisan turmoil," said the CRS report.

It isn't unprecedented. In 1960, the governor of Hawaii appointed electors for then-Vice President Richard Nixon. But a recount ultimately found that Sen. John F. Kennedy had won the state's vote. The election wasn't contested, however, and it didn't come down to Hawaii for the ultimate decision of who won.

Foley suggested Congress clarify the law.

Read the full report from RollCall.com