//  11/6/20  //  Commentary

Cross-posted from the ACS Expert Forum

American history is replete with presidential elections that were not decided on Election Day. From the very first presidential election in 1788 through the 2016 election, having a sufficiently complete count of votes to confidently predict a winner on the same day that the polls close has been the exception, not the norm. That’s why all of us, who teach and write about constitutional law, election law, voting rights, and/or the rule of law, are signing this letter—reaffirming that it is deeply in line with, and not counter to, our finest traditions to count every vote, to take our time in doing so, and to not cast aspersions on the process simply because it is methodical.

It should go without saying, but under our constitutional system, presidential elections are really 51 different elections—where the voters of every state and the District of Columbia separately vote for a slate of presidential electors, who meet 41 days after Election Day as the “Electoral College” to officially vote for the President and Vice President. Since the nineteenth century, federal law has thereby deemed as conclusive any state certification of presidential election results that takes place within the first five weeks after Election Day—and every state except one (Delaware) waits at least a full week before officially declaring a victor.

Both historically and today, the reason for this cushion is entirely to ensure that the votes are properly counted—to provide local and state election officials with enough time to ensure that all lawful votes are tallied in the first place; to resolve any discrepancies that arise during the counting process; and, where necessary, to conduct a recount if the margin is sufficiently narrow. Media organizations report these results on an ongoing basis, leaving many with the misleading impression that a particular candidate may be “winning” or “losing” (or gaining or losing ground). But the reality is that the votes have already been cast by the time these reports come out; the media is reporting on the counting, and every state counts their votes in a different order. In some states, including some of the states on which this election appears to be hinging, the first votes received are actually counted last—thanks to state-law rules barring the “pre-canvassing” of such votes before Election Day. Perhaps Congress should consider the wisdom of enacting uniform federal laws to standardize pre-canvassing, mail-in ballot receipt deadlines, and other rules to make these results more easily predictable; that’s a conversation for another time.

For now, we say all of this in direct and concerted opposition to the repeated public statements of President Donald Trump, who has claimed that he “won” states that are still counting; that it is “very strange” that the totals are shifting against him in some states as more votes are counted; and that Democrats are trying to “steal” the election. These statements are false as a matter of both contemporary fact and historical practice; they are unbecoming of the office that, whatever the result of the election, the President continues to hold, and they risk undermining public confidence in the legitimacy of the ultimate result of the election—perhaps even provoking violence and civil disorder.

The President knows better. His advisors know better. His supporters in Congress know better. But most importantly, the American people know better—because we’ve seen, first-hand, how prior presidential elections have run. Simply put, there is no evidence that this election is anything other than one of the many in American history in which a number of states have been closely divided. We have every confidence in state election officials to finish counting all of our votes as best they know how—and we encourage all of our fellow citizens to wait until they have done so before jumping to conclusions.

Signatories as of November 5, 2020 

Stephen I. Vladeck

Charles Alan Wright Chair in Federal Courts, University of Texas at Austin School of Law

Matthew Adler

Professor of Law, Duke University School of Law

Sam Bagenstos

Frank G. Millard Professor of Law, University of Michigan Law School

Joseph Blocher

Lanty L. Smith '67 Professor of Law, Duke University School of Law

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

Alan Chen

Professor of Law, Denver University Sturm College of Law

Sarah Cleveland

Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School

Wilfred Codrington III

Assistant Professor of Law, Brooklyn Law School

Michael Dorf

Robert S. Stevens Professor of Law, Cornell Law School

Joshua Douglas

Ashland, Inc.-Spears Distinguished Research Professor of Law, University of Kentucky J. David Rosenberg College of Law

Garrett Epps

Professor Emeritus, University of Baltimore School of Law

Bryan Fair

Professor, The University of Alabama

Joseph Fishkin

Marrs McLean Professor in Law, University of Texas at Austin School of Law

Luis Fuentes-Rohwer

Professor of Law and Class of 1950 Herman B. Wells Endowed Professor, Indiana University Maurer School of Law

Ruben Garcia

Professor of Law, UNLV Boyd School of Law

Kent Greenfield

Professor of Law and Dean’s Distinguished Scholar, Boston College Law School

Heidi Kitrosser

Robins Kaplan Professor of Law, University of Minnesota Law School

Harold Hongju Koh

Sterling Professor of International Law, Yale Law School

Steven Koh

Marianne D. Short and Ray Skowyra Sesquicentennial Assistant Professor of Law, Boston College Law School

Margaret Lemos

Robert G. Seaks LL.B. '34 Professor of Law, Duke University School of Law

Lawrence Lessig

Roy L. Furman Professor of Law and Leadership, Harvard Law School

Justin Levitt

Professor of Law, Loyola Law School

Marin Levy

Professor of Law, Duke University School of Law

Leah Litman

Assistant Professor of Law, University of Michigan Law School

Darrell Miller

Professor of Law, Duke University School of Law

Victoria Nourse

Ralph Whitworth Professor of Law, Georgetown University

Richard Painter

Walter Richey Professor of Corporate Law, University of Minnesota School of Law

William Rich

Professor Emeritus, Washburn University School of Law

Kermit Roosevelt

Professor of Law, University of Pennsylvania Law School

Bryan Sells

Adjunct Professor of Law, Georgia State University College of Law

Peter Shane

Jacob E. Davis & Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law

Jed Shugerman

Professor of Law, Fordham Law School

Neil Siegel

David W. Ichel Professor of Law and Professor of Political Science, Duke University Law School

David Strauss

Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

Ciara Torres-Spelliscy

Professor of Law, Stetson University College of Law

Laurence Tribe

Carl M. Loeb University Professor Emeritus, Harvard Law School

[*] Affiliations provided for identification purposes only. All signatories represent their views as individuals and do not sign on behalf of any law school or organization.


How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

Versus Trump: The Law Headed Into The Election

11/2/20  //  Commentary

Will this be the last Versus Trump before Trump loses reelection? Who knows, but, on this week’s episode, Jason and Charlie discuss key theories that will shape which votes count. Listen now!

Charlie Gerstein

Civil Rights Corps

Kavanaugh's Wisconsin Opinion Flunks Originalist Test of Constitution's Text and History

10/30/20  //  In-Depth Analysis

Brianne Gorod & Charlie Miller: Contrary to Justice Kavanaugh’s suggestion, there is nothing sacrosanct about November 3, and no requirement that the country must know the victor of the presidential election that night.

Brianne J. Gorod

Constitutional Accountability Center