A disputed presidential election would be a mess

Editor’s Note: Joshua A. Douglas is a professor at the University of Kentucky College of Law who specializes in election law and voting rights. He is the co-editor of “Election Law Stories.” He has contributed to and volunteered for the Hillary Clinton campaign. Follow him on Twitter @JoshuaADouglas. The opinions expressed are his own.

As polls tighten and Donald Trump has cast doubt on the reliability of the election system, talk inevitably has turned to whether we might be in for another postelection dispute.

In addition to the possibility of federal court litigation, each of the 50 states has its own, detailed mechanism for handling a disputed presidential election. Although the procedures vary by state, they all generally suffer from the same destabilizing mechanism: a lack of safeguards to root out the appearance of partisanship.

Many states, such as Florida and North Carolina, treat an election contest like a normal lawsuit. The candidate down in the count simply files a challenge with a state trial court, alleging that something in the vote casting or counting process was amiss that would change the result.

This is how the Florida 2000 election contest proceeded, going all the way to the US Supreme Court. Thirty-nine states elect at least some of their judges, meaning that a person elected to office could play a significant role in deciding legal disputes surrounding the presidential election.

But some states, such as Colorado, skip the trial courts altogether, instead sending the dispute straight to the state Supreme Court. Other states create a special court to hear an election contest. For example, Iowa has a special five-member tribunal decide the dispute. This tribunal includes the chief justice of the Iowa Supreme Court and four district court judges who the Supreme Court selects. Pennsylvania and Virginia have similar processes.

In other states, the process stays outside of the judiciary altogether. In Missouri and Wyoming, for instance, the state Legislature decides a contest over presidential electors, although in Missouri the Legislature receives the aid of a state judge who can gather evidence.

And some states create a special tribunal that does not include any judges. New Hampshire has a Ballot Law Commission, which includes four members that the speaker of the state House and president of the state Senate select (one from each major party), and a final person, who must be knowledgeable in election procedure, that the governor chooses. The Tennessee presidential electors tribunal is composed of the governor, the secretary of state and the attorney general, and no appeal of the tribunal’s decision is allowed.

Ohio, a key battleground state, explicitly prohibits any postelection disputes through the state system, meaning that a candidate can bring a challenge only in federal court.

And, in perhaps the strangest example of all, Texas law vests exclusive jurisdiction to resolve disputes about the state’s presidential electors to the governor. Imagine Hillary Clinton trying to challenge the results in Texas, with her only recourse being Republican Gov. Greg Abbott, who has echoed Trump’s rhetoric on voter fraud!

Moreover, if the dispute in any of these states were to end up at the US Supreme Court, we now have the prospect of a 4-4 tie, given the current vacancy, which would have the effect of summarily affirming the lower court – likely an elected state judiciary or other state actor.

All of this points to a stark reality: A disputed presidential election would be a mess. The hodgepodge of postelection procedures in the states leads to several unsatisfying conclusions.

First, we are ill-prepared as a country to handle significant uncertainty in the winner of the presidential election. Many states have not updated their election contest procedures in decades, even after witnessing the Florida debacle of 2000. That must change.

Second, states have done a poor job at elevating the importance of ideological balance in selecting who should hear these cases. Impartiality – or at least its appearance – should be one of the most important considerations in deciding who decides. Imagine if Trump initiates an election contest but loses: surely he will invoke the phrase “rigged” over and over. It will not help if the tribunal is, itself, subject to criticism of partiality – much like the Supreme Court was in Bush v. Gore. Yet these state mechanisms would be subject to even greater criticism because they typically use elected judges or politicians.

There are various proposals out there, including one from the American Law Institute and from various legal scholars, to fix, or at least mitigate, this problem.

My own solution is to have each candidate select one member of a special five-member tribunal, and to have those two pick the other three – who must be registered as independent and not have other partisan affiliations – all ahead of Election Day. Once the 2016 election season is behind us, states must actively reform their laws to deal with the next, inevitable electoral meltdown.

Finally, come Election Day, expect to hear the “election administrator’s prayer” recited quite often: “Please, please, please let the winners win big.” Because if it is close, the minutiae of state election law could play a significant role in determining our next president.