Professor Rebecca Green has served as co-director of the Election Law Program since 2008. Her research explores topics such as election administration transparency, redistricting transparency, and candidate privacy. She has been a featured expert in media coverage of the 2020 election, including in The New Yorker, Wisconsin Public Radio, The Guardian, The Financial Times, and Bloomberg Law.
This story is part of W&M News' Faculty on Topic series - Ed.
Have there been an unusual number of court challenges following the 2020 presidential election?
Post-election litigation is a regular feature of American elections. Every state has processes that allow for the count to be verified and for candidates (and voters) to allege official misconduct or fraud. Americans can be proud of not only election administrators who have performed with exceptional professionalism in a difficult environment, but also federal and state courts which have played a pivotal role in ensuring that post-election processes played out and that the public can be confident in the results the election produced.
What allegations has the president made and how have the courts regarded them?
President Trump has for years suggested that American elections cannot be trusted. Early in his administration he formed a commission to find millions of illegal votes he alleged were cast in the 2016 election. That commission disbanded without finding evidence of fraud. As many predicted, Trump continues to claim widespread voter fraud in this year’s election. Yet his campaign has failed to produce evidence. Courts have strict rules that allow claims to go forward only if credible evidence exists. So far, the Trump campaign, like the commission, has produced no credible evidence of widespread fraud.
Should voters have confidence that fraud or voting irregularities did not affect the outcome of the 2020 election?
Voters can have a great deal of confidence in our election. Each state system offers robust statutory and procedural safeguards to ensure election outcomes are reliable. Especially in an environment with increased accusations of fraud in the years leading up to the election, election administrators have worked hard to ensure the transparency and integrity of the election. Multiple layers of bipartisan oversight are regular features of the American election process in every state. Post-election audits, recounts, and challenges in court have all been playing their role in stress-testing that the outcome is correct.
President Trump tweeted on November 23 that he “will keep up the good fight” even as he authorized his administration to assist in the transition process. Can the Trump campaign continue to challenge the results in court once all states certify their results?
Some state laws allow candidates to challenge results post-certification (in fact, many require candidates to wait for certification before contesting the result). For this reason, the Trump campaign is within its right to continue to challenge results pursuant to state rules and deadlines. But as has been the case in lawsuits brought so far, credible evidence of fraud or misconduct is required if these challenges are to proceed. So far no such evidence has emerged.
There are two upcoming deadlines for the Electoral College: December 14 and January 6. What happens on those days? Is there any reason to think that the process might not go smoothly?
The Electoral College will convene on December 14 in each state as required by law. At these proceedings, the slates of electors representing the candidate that won the popular vote in each state will cast their votes for their designated candidate. Thanks to a Supreme Court case last summer finding state elector binding laws constitutional, we have even greater assurance that electors will cast their vote for the candidate they are pledged to vote for.
On January 6, Congress will formally receive and count states’ Electoral College votes. Members of the House and the Senate will meet in the House chamber. The President of the Senate (Vice President Mike Pence) will preside over the session and the Electoral votes will be read and counted in alphabetical order by two appointees each from the House and Senate. They then give their tallies to Pence, who announces the results and listens for objections.
It is unlikely that states will send competing slates to Congress or that there will be disputed electoral college ballots. If that happens, federal law governs how that process will unfold and how Congress will resolve disputes over which ballots to count. Because Biden has a commanding Electoral College lead, it is exceedingly unlikely that disputed Electoral College ballots or even a state sending competing slates of electors would impact the outcome.
A candidate conceding or not conceding has no effect legally, correct? Are there benefits to the democratic process when a candidate formally concedes?
Yes, a candidate conceding or declaring victory has no legal effect. What matters is the counts states certify. President Trump’s refusal to concede without credible evidence of fraud or irregularities that would impact the outcome is damaging to our democratic process. It delegitimizes American democracy and drives millions of his voters to distrust our system of elections. Public faith in election outcomes is a bedrock of our democratic process. Without it, democracy ceases to function.
Was the presidential election of 2020 “one for the record books"?
There is no question that 2020 is one for the record books, but I hope it is recognized not just because of Trump’s refusal to concede. It has been an extraordinary election because hardworking state election officials ran a free and fair election—with record turnout—during a pandemic. A new generation of citizens stepped up to work as poll workers. Many states expanded ways Americans could cast ballots to accommodate pandemic conditions. With so much that could have gone wrong this year even beyond the pandemic, from cybersecurity threats to hurricanes, things could have been much different. That is something we should all be grateful for.