In this unprecedented presidential election, a handful of swing states may mean the difference between winning or losing. But what happens if the votes are tallied and neither side is willing to admit defeat? 

Ned Foley, the Chair of Constitutional Law at Ohio State University, has been looking into that very question.

“I don't want to say that the likelihood of reaching January 20th and the election still disputed is very high at all,” says Foley. “You'd hope the probability of that would be infinitesimal. And in most years it is.”

What makes this year different? Well for starters, the pandemic has radically changed the voting process. Instead of going to the polls, many more Americans chose to mail their ballots.

Research shows mail-in ballots are rejected at a higher rate than traditional ballots. An error like a missing signature, or not putting using the correct envelope, can cause an absentee ballot to go uncounted. Mail-in ballots are also more vulnerable to accusations of voter fraud. 

Although fraud itself is found to be infinitesimal, challenges to mailed ballots can gum up quick resolutions to elections.

Challenged or not, mailed ballots also take longer to count. Depending on state laws, results may not be available until weeks after the election – an opportunity for confusion, especially within the electoral college.

Electors are appointed officials – Democrats and Republicans – who translate a state’s popular vote into electoral votes, ultimately deciding who is president.

Experts say delayed results and accusations of fraud could prompt some state’s electors to submit conflicting results to Congress, which certifies the results. 

“Both the Trump electors and the Biden electors meet on December 14th, each claiming a source of authority, and we can imagine scenarios where they might each have a claim,” explains Foley. That scenario, he says, could result in the Democratic and Republican electors from the same state submitting conflicting results to Congress. 

If that all sounds a little far-fetched, consider this – it's happened before, back in 1876.

“Hayes was the Republican candidate. Tilden was a Democrat. And on the same day, the Hayes electors met and voted for Hayes in Florida. And the Tilden electors met and voted for Tilden in Florida, and both can't be right,” Foley explains. 

That created a conundrum, and the Constitution provided no clear solution. 

To resolve the dispute, Congress appointed a bipartisan committee tasked with deciding which set of results to accept. After months of arguing, a deal was struck under candlelight just two days before the inauguration. 

Tilden and the Democrats would concede to Hayes and the Republicans in exchange for the removal of federal troops from the South. 

The deal – known as the Compromise of 1877 – is often cited as a turning point that allowed Jim Crow laws to take root in the South. A decade later, Congress passed the Electoral Count Act. The law was meant to explain exactly how to decide which set of results to accept, in the event that a state claimed  more than one winner, but the legislation is murky at best. 

“The political scientists of the era when it was produced called it almost unintelligible. I think that ‘almost’ is charitable,” says Foley. Since its signing, there have been break-off interpretations. One common interpretation would give the electoral votes to the candidate supported by the disputed state’s Governor, while others argue it should be given to the candidate backed by the state's Secretary of State. Other interpretations vary widely—some even suggest that the disputed state’s electoral votes be discarded entirely.

But what is clear, according to the Constitution, is that the current presidential term ends at noon on January 20th. If Congress hasn’t selected a winner by then, the Speaker of the House would be sworn in as Acting President until the dispute is resolved but there’s just one catch. Both the senate and the house would have to agree that there’s no clear winner. If they can’t agree, well there is no precedent for that.

“That's something we've never had in history. And you'd like to avoid that at all costs,” says Foley.

So how do we avoid this type of standoff? 

To allow more time to resolve disputes on the state level, some members of Congress suggest pushing back the deadline for electoral votes. Meanwhile, some states have changed laws so that election officials can start counting mail-in ballots earlier. 

And what about the third branch of government? If all else fails, the issue may end up before the Supreme Court. Although the court has stepped in to determine state level election results —like it did during the Bush/Gore election of 2000— the justices have never been asked to weigh in on the overall national results, and could choose not to hear the case.  

While a crisis of this magnitude is unlikely, experts say not to anticipate final results on election night. In fact, Americans will likely be waiting days—possibly weeks—for election results.