Potential legal battles
"If the outcome is uncertain by, let's say the early morning the next day, because there are significant states that can't get to a full count because of the massive volume of absentee ballots that still have to be counted ... then what I would expect to happen is intense disputes in those states about each and every one of those absentee ballots, and whether they should be treated as validly cast," Pildes said.
There are some key milestones between Election Day and the counting of the votes by Congress on January 6. The first of these is December 8, the so-called "safe harbor" date by which states are expected to submit certified slates of electors to the Archivist of the United States.
In the event a state has not completed its vote count by that date, either because of ongoing counts or legal actions, there is a provision in federal law that allows the state's legislature to convene and appoint a slate of electors without knowing the final vote tally. This creates the possibility that a partisan legislature could appoint a slate of electors supporting the candidate who ultimately loses the state's popular vote.
In states where the governor and the legislature are split between parties, there is another complicating factor. Because it is the governor who officially certifies the slate of electors after a vote, it is possible that a state could submit two slates of electors, both with a plausible claim to legitimacy.
Under federal law, if the new Congress is presented with two competing slates of electors from the same state, the House and Senate vote to determine which will be accepted. If they agree, the slate they choose is counted. If they disagree, the slate certified by the governor prevails.
