As the presidential poll numbers narrow on a national level and in the battleground states, Americans are eagerly awaiting that moment on the evening of November 6 when they will learn the identity of our next president. Or will they?
In 2000, a voter who went to bed early on election day did not wake up to see a president-elect the next day or for more than a month of days. In 1876, months passed before a president was selected as the dispute spilled into a bitterly divided Congress which was split on how to count electoral votes. Could it happen again? Yes - and a drawn out fight over a presidential election between two bitterly opposed parties would not serve our nation well.
Americans remember Florida 2000, the recounts, “hanging chads,” a Supreme Court decision and ultimately an official margin of several hundred votes that led to the victory of George W. Bush. In the aftermath of Florida, states have made important improvements in the election process. Gone, for example, are the punch card machines that produced hanging chads.
But problems remain in our voting system that would be magnified by a recount of a close election. It is not even clear that states could complete their recounts in time to meet the deadlines of the presidential election.
The Supreme Court in Bush v. Gore assumed that all state recounts should be complete by six days before the presidential electors are scheduled to vote in mid-December. For 2012, this means that presidential recounts will have to be completed by December 11, 35 days after the November election.
But few states have a recount process that could fit into this timeframe. Recall the closely contested Minnesota Senate race between Al Franken and Norm Coleman, which was finally resolved nine months after the November election. That long timeframe was not envisioned by any legislator, but was brought about by legal challenges by both campaigns as well as the desire of the system to give a fair hearing and create new and thorough processes of counting, recounting and contesting the election.
And several other factors could draw out vote counting in 2012. Some states will not even certify the initial results until 28 days after the election, and recounts and legal challenges could extend disputes much longer. Absentee and provisional ballots, which have increased dramatically since 2000, take longer to count than other ballots, and each one can be a lawsuit in and of itself (was it signed correctly, postmarked, was the person registered, etc.)
The bottom line is that if the presidential election comes down to a state with a razor-close margin - such as Virginia, Ohio, Colorado or Florida again - we could easily have a replay of Florida 2000, with no winner until December, armies of lawyers descending on the state, legal maneuvers to change the timetable and to question every aspect of our election system, and partisan hard feelings on both sides.
But it could be worse. In 1876, there were conflicting slates of electors put forth by several states. Congress has a role in counting the votes of the electors and certifying the winner, but party control in Congress was divided, and neither side was willing to budge. An appointed commission ultimately resolved the elections in disputed states in favor of Rutherford B. Hayes, but the divided Congress did not immediately accept that decision until a deal on rolling back Reconstruction was struck on March 2, two days before the inauguration.
The parallel for today is a closely divided state with a recount like Florida 2000, but at the end, both sides claim victory. Perhaps a secretary of state or governor would certify one set of election results but a state court would certify another. Now imagine a Congress with Republicans in control of the House and Democrats in control of the Senate, the reverse of 1876. In early January, Congress begins the process of counting the votes. But both sides stall, with the House refusing to join a joint session of Congress, and with the Senate president pro tempore threatening to certify the slate of electors of his own party.
The deadlock, that would have to be resolved between January 3 and January 20, when the new president would take office, would make Florida look like a mild spat between friends.
There are longer term institutional fixes to improve the recount process and the way Congress counts electoral votes. But for this election, we should pray for an outcome that is not in dispute or for cooler heads to prevail if we do head to a recount.
Dan Glickman, a former Secretary of Agriculture, is a Senior Fellow at the Bipartisan Policy Center. John Fortier directs the center’s Democracy Project.