Election Law

How a Trump election challenge could play out

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Donald Trump from Joseph Sohm / Shutterstock.com.

A challenge to election results by Donald Trump could start and ultimately end in the states.

State laws governing recounts vary, CNN reports in an article by University of Texas law professor Steve Vladeck. Issues include when a candidate can request a recount and when the recount is required.

Some states require an automatic recount when results are close. And some states don’t allow recounts unless the vote is close, report Politico, the New York Times and the Boston Herald. Some states allow recounts when there is a larger margin separating the candidates but require the candidate to pay the cost.

Trump could challenge the recount results. He could also sue state officials for allegedly violating their own election procedures. And he could claim voter fraud changed the results.

Larry Noble, former general counsel of the Federal Election Commission, pointed out that Trump can’t rely on general allegations of fraud to make his case. “You need something more specific,” he told the Boston Herald. “You need a serious claim.”

Federal law guarantees recognition of a state’s electors only if the results are certified within 35 days, giving the states five weeks to resolve challenges, according to the CNN article. A longer resolution could run the risk that Congress wouldn’t recognize state results and would instead make its own decision on the state winner.

Trump could try to persuade electors meeting in December to ignore the state vote, or he could ask state lawmakers to appoint new electors, University of California law professor Richard Hasen tells the Times.

Congress meets to count electoral votes Jan. 6. If no candidate receives a majority, each state casts a vote to determine the winner. Trump could also ask Congress not to recognize a state vote or to challenge a state’s counting procedure, Hasen said.

Disputes over election results are resolved under state law unless a federal constitutional violation can be shown. That was the issue in Bush v. Gore, when the U.S. Supreme Court ruled 5-4 on behalf of George W. Bush, finding an equal protection clause violation.

What happens if a constitutional case goes to the U.S. Supreme Court? If the court splits 4-4, the state supreme court opinion would be affirmed, CNN reports in a different story.

Another scenario would be a recusal by Justice Ruth Bader Ginsburg because of her comments criticizing Trump as “a faker” with “an ego” who “says whatever comes into his head at the moment.” New York University law professor Stephen Gillers told CNN in July that he thinks Ginsburg would be required to recuse because her impartiality might reasonably be questioned.

But it would be up to Ginsburg to decide whether to recuse.

Revised at 9:50 a.m. to correct wrong reference in the second to last paragraph.

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