What to Expect From the Elections on November 3, 2020

Nossaman eAlert

Elections are generally a time of increased stress on society, and this election has been one of the most stressful. However, the extreme negative fantasies rumored by some in connection with this election are just that, fantasy and rumor. While there are many uncertainties, we do know that the economy will remain fluid, the executive branch agencies will continue to perform their essential duties and the election itself will be resolved in a civil manner.

Delayed Election Results

We should expect that the conclusion of the presidential race and determination of control of the U.S. Senate will come in days or weeks, not hours. It is possible that will not be the case, but likely one or both results will take days to ascertain. This is because of an increase in the overall volume of votes, as well as recent changes to election procedures in many states and current and expected litigation about those changes.

At this time, there appear to be a half dozen or so states in the Great Lakes and Southern regions of our country that are key to determining the outcome of the presidential and U.S. Senate elections. Some of them, like Wisconsin and North Carolina, are already in the midst of legal challenges to their processes, as is the Commonwealth of Pennsylvania. With an unprecedented amount of early and absentee voting, it is likely that more than half of all votes will be cast before Election Day. However, tabulation by many states does not begin until Election Day. Also, as we write this, 17 states allow counting of ballots that are received after Election Day. North Carolina and Pennsylvania both have laws that allow counting of ballots received by 5:00 p.m. on November 6th. So, it may be that the majority of votes in states that are key to the election outcome will not be counted until well after Election Day.

Our judicial systems, including the Supreme Court of the United States, are playing and will continue to play a role in this process. Several state parties are preparing to challenge the process on Election Day, as well as while results continue to be tabulated. In the event that their candidates are not determined the winners, some of those state parties are likely to challenge those results. This will likely lead to prolonged anxiety about the outcome of the elections. Employers should continue to follow the above and provide a steadying force of “business as usual.”

The End

As mentioned above, this will end as required by our Constitution and federal statutes. The Constitution provides a certain date by which there must be a national general election for president, vice president and Congress. This year that is November 3, 2020 (3 USC §1). States must tally the votes of their electors according to a statutory deadline as well, which, this year, falls on December 14, 2020 (3 USC §7). The states must certify the results in writing to various federal and state officials – this year by December 23, 2020 (3 USC §12). On January 6, 2021, at 1:00 p.m., in a joint session, Congress will count the Electoral College votes for President and Vice President (3 USC §15).

In the event that count is not determinative (e.g. no candidate receives a majority of Electoral College votes), the Congress will choose the president and vice president. The House elects the president from among the top three candidates to receive Electoral College votes. The Senate elects the vice president from candidates who received the first and second most Electoral College votes. To elect the president, the House delegation from each state has one vote to cast. A state determines how to casts that vote by the result of a vote of each member of that state’s congressional delegation. While Republicans currently hold the majority of seats in 26 state delegations to the US House in the 116th Congress, that may not continue to be the case in the 117th Congress, which would be determining the election in this scenario.

In the unlikely event that the Congressional selection process, too, does not yield a president and vice president by the end of the current terms on January 20, 2021, the Speaker of the House will become the acting president until a winner is determined. If there is no Speaker at that time, the acting president will be the most senior member of the majority party in the Senate - the “President pro tempore” of the United States Senate. (See: Presidential Succession Act of July 18, 1947). So, it becomes apparent that there are provisions for at least an acting president in the unlikely event the states, the Electoral College and the U.S. Congress all cannot determine who will assume those roles by January 20, 2021. Despite the stability provided by this system, more than one set of voters may be disgruntled with the outcomes. Several potential circumstances could spark unrest about the election.

Business As Usual

The Federal Reserve (“The Fed”) is holding billions of dollars that it can use to keep U.S. businesses running. The Fed has shown it will buy bonds to calm markets, and use emergency lending programs. Despite delayed election results, our economy and critical government functions will remain operational.

The executive branch of the United States Government will continue to function well after a delayed presidential election result. Each candidate has long been hard at work planning to assume (or continue) control of the departments and agencies, as required by law (See: Presidential Transition Act of 1963, 3 USC §101, et, seq.) In the event of a dispute over some aspect of the elections, U.S. courts and the Congress will resolve any disputes, not the U.S. Military. Continuation of our government will occur in a civil manner, even if election results come later than we would like.

The Real Threat

While control of the Senate and White House may take several weeks or months to determine, the real crisis will more likely come from extreme civil unrest. Trump supporters will likely be upset if he is ahead in the immediate aftermath of Election Day, and then Biden pulls ahead after mail-in and early votes are counted. See the discussion above about the unprecedented amount of mail-in and early ballots, most of which will be counted (and some received and counted) well after Election Day. Conversely, Biden voters would likely be upset at a Trump victory, since just days before the election numerous polls show a sizable Biden lead. At least one polling company states this is possible. That company has a track record of success, having predicted the outcome of the 2016 presidential election, the 2018 races for governor in Florida and Ohio and the 2018 Florida senate race. If Biden loses, his supporters may be in even more disbelief than some were at Trump’s defeat of Clinton in 2016. Supporters of the losing candidate will most likely stage in-person demonstrations. Law enforcement on all levels across the country has long been preparing for the very real potential that extremists will use these demonstrations as an opportunity for violence and destruction. This will stoke discord among many in our country.

Other than government buildings, the most frequent targets for such violence are commercial stores and other corporate offices. What you can do is provide for the safety of your employees in connection with their work, and support their civil rights, including their right to vote. Do all you can to facilitate that; but protect your organization from prohibited use of its resources in connection with any political party or campaign. What employers can control is the use of their resources, including the company name. This includes the use of a person’s title in connection with campaign activity.

Elections are an occasion to double-check employee policies, procedures and handbooks, including leave policies. This protects the civil rights of employees and prevents a potential violation of campaign law. The events of 2020, including but not limited to the pandemic, have taught businesses to be resilient. We can use those lessons to protect employees and customers while preserving business. It may be that the potential threats described above present circumstances where the lessons learned can be useful.

The pandemic and other events of this year have produced so many surprises and lessons learned. This election may produce some as well. We should take the lessons learned from what we have endured and apply them to protect our employees and business around election time. One of the best things about the United States is that it continues to function in times of great stress. This election will be no exception.

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