Legal challenges could lie ahead
If the majority of Republican voters actually cast their ballots in person and most Democrats vote by mail, Trump could possibly lead the race for the White House once all the polls have closed. Later in the evening, though, Biden would gradually catch up once the mail-in voting results become available, and he might even overtake the incumbent US president. Such a scenario would be especially problematic if Trump were to declare himself the victor before Election Day is out. Should his challenger ultimately win the popular vote, though, it very well might be that the Republican camp claims “voter fraud”. A survey conducted by the “Center for American Progress” and “American Enterprise Institute” shows that 80% of the Republican electorate suspect that mail-in vote fraud will skew the election in favour of Biden. Thus Trump knows his base will have his back if he refuses to accept the official election results.
However, an accusation of “voter fraud” is on shaky legal ground. But there are ways to legally challenge mail-in votes. The US law acknowledges a number of possible violations in this regard, ranging from the imprecise placement of the signature to the illegibility of the voter’s name on the mail-in ballot. Vote recounts and reevaluations could therefore be on the agenda. In the end, a Supreme Court ruling might even be necessary. This was the case, for example, in the 2000 presidential election. Due to the legal spats about the proper counting of votes in Florida, it took more than one month after Election Day until an official result was announced. Only once the Supreme Court, which at the time was composed of a majority of conservative judges, issued a final ruling prohibiting a recount in certain Florida voting districts, was the Republican candidate George W. Bush’s election victory official. With an edge of only 537 votes (a figure which is still disputed today) he won the state of Florida and hence its Electoral College votes. The curious thing is that Al Gore, his opponent, was initially declared the winner on Election Day, even though the vote counting had not yet been completed in certain parts of the state.
Whatever the case may be, a final result must be available by 8 December at the latest, as the Electoral College convenes on 14 December to formally elect the President. Things could become difficult if it is not clear by then who actually won the race, because at that point the US Constitution reaches its limits. It is conceivable that the parliament of affected state would then be charged with nominating its electors by majority vote.
However, in light of what portends to be the historically high voter turnout, we do not expect this “worst-case scenario” to materialise. The citizens expect that their vote will count, and that the two political parties (possibly with the help of the courts) accept their vote.
Summary
The high percentage of mail-in voters makes this year’s US presidential election a special one. It is uncertain whether a reliable result will be available in the evening hours of 3 November (local time). The closer Donald Trump and Joe Biden are to each other in the race for the Oval Office, the more likely it is that Election Day will turn into one or more “election weeks”. But a large number of mail-in ballots have already been received and are being prepared for counting in most of the states. The clearer the voting outcome will be in favour of one of the candidates, the lower the risk of legal action. But even if the result is a long time coming, there will be a final result. The catharsis that comes from knowing that the thorny 2020 election is finally over could be all the greater afterwards, and could even spark a relief rally in the equity markets.
