Ignore Trump and count every vote

There will be an election this year. The 20th Amendment to the Constitution provides that the term for members of the House of Representatives end on Jan. 3, 2021, and therefore the nation needs to hold an election before then, so that there are representatives ready to take office when the new terms begin that same day.

Congress could delay the date of these congressional elections, as suggested by President Trump. But it won’t, and shouldn’t, happen. It takes time to count votes and is likely to take extra time this year because of the need for additional vote-by-mail, as shown so far in the primaries. Thus any delay after Nov. 3 would unduly risk the ability to complete the counting in time for the new members of Congress to take office on Jan. 3.

As for the presidential election, the key again comes from the 20th Amendment: The current term ends at noon on Jan. 20, and if there is no president-elect (or vice-presidentelect) by that time, then the powers of the presidency constitutionally devolve to an “acting president,” according to a line of succession established by Congress.

The speaker of the House at the time, assuming there is one, would have the option of serving as acting president. If there is no presidential election completed before Jan. 20, there is no constitutional possibility of Donald Trump being president, or acting president, as of noon that day. Zero.

The elections will remain scheduled for Nov. 3. The question will be whether procedures to be used will be sufficient to permit every eligible voter wishing to participate to have an adequate opportunity to cast a ballot that will be counted.

Candor requires acknowledging that there will be challenges in satisfying this basic standard — challenges caused largely by conditions associated with coronavirus.

First, some voters may properly request mail ballots to which they are entitled by state law, but they may never receive them because of the failure of local election administrators (or the postal service) to deliver these ballots to the voters in time.

Second, some polling locations may have unreasonably long lines — several hours or more — that cause voters to forego casting a ballot because they cannot wait that long.

The primary elections this year saw both types of problems, and they probably will happen again in November.

But here’s a crucial point. As horrible as wrongful disenfranchisement is to the particular voters who suffer it, and as much as the electoral system should endeavor to avoid any wrongful disenfranchisement at all, what matters in terms of the capacity of the election to serve the purpose of collective self-government is whether or not the wrongful disenfranchisement affects the accuracy of the outcome.

Given the purpose of elections, the question ultimately is this: Is the candidate declared the winner the candidate that the electorate collectively wanted to win? If the answer is yes, then the system did not fail to serve its essential purpose even if there were problems. (Recall: President Obama needed to establish a commission after the 2012 election because of the long line problems that year, but those problems did not negate the validity of his victory.)

This point leads to another one: There is no reason to distrust the procedures for counting votes unless there is specific evidence to call these procedures into question. This year the counting process may require more time to identify a winner, but that alone does not mean the counting process will be any less accurate.

Nor is there any intrinsic reason to distrust the counting of vote-by-mail ballots. Procedures exist to disqualify any particular ballots that should not be counted. As long as these processes are followed, the results should be accepted as sound.

Otherwise, we would be giving up on our capacity to exercise self-government.

Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program.