Campaign 2016: The Election Moves from the Polling Place to the Courtroom

While either Hillary Clinton or Donald Trump will be elected president, the real winner on Election Day is expected to be people who charge by the hour. There is a good chance that whatever the results on Tuesday, the election results could end up being disputed in court.

On Monday, just hours before polls opened, Trump's team went tocourt in Nevada to challenge votes cast during early voting.

The suit comes as both parties have been going to courtrooms from Ohio to Florida to New Jersey arguing over issues ranging from voter rolls to voter suppression. Some of these cases are meant to get issues addressed before Tuesday, while others could be used as building blocks for cases after Election Day that would challenge results.

And, perhaps more ominously, at the third and final debate between the candidates last month, Trump refused to say straight out that he would accept the election results if he didn't come out the winner.

"I will look at it at the time," he said.

The next day at a rally in Ohio, he seemed to make light of the possibility, joking that he would accept the results, "If I win," raising the possibility that the United States could have its first contested election since 2000.

That year, the election between George W. Bush and Al Gore turned into a 36-day dispute over votes in Florida that ended up being resolved by the United States Supreme Court.

So, what does it mean to have a contested election? When Trump says he will wait and see before deciding whether to accept the election results, what exactly are his options?

First and foremost, Trump cannot legally challenge the results on a nationwide basis. The elections are run by the states — each one has its own mechanisms for bringing a challenge. So, he would have to challenge the results in individual states.

Twenty states plus the District of Columbia have provisions calling for automatic recounts if the results are within a certain amount. This ranges from Alaska, where an automatic recount happens if the vote is tied, to Michigan, where there's an automatic recount if the candidates are separated by 2,000 votes or fewer, to several states where there is an automatic recount if the candidates are separated by 5 percent or less of the highest vote for that office.

If there's no automatic recount, the loser still has options.

Forty-three states plus the District of Columbia permit the losing candidate or a voter to petition for a recount. Arizona, Connecticut, Florida, Hawaii, Mississippi, South Carolina and Tennessee do not.

New York does allow for a losing candidate to ask for a recount — but only in village elections.

If the loser does choose to challenge the results, they don't have all the time in the world to decide to go that route. The Electoral Count Act of 1887 puts in place two deadlines.

States must certify their results within 35 days if they want their electors recognized, and those electors must be appointed within 41 days of the election.

Electors? Remember, the United States is a republic and not a democracy. The people elect people (electors) who then elect the president. Hence, the Electoral College.

So, say the loser does go to court... what happens then?

The case will be heard by the state supreme court in the state where the challenge happens. As for the U.S. Supreme Court, its involvement is extremely unlikely, as it can only get involved if there is an issue of federal law involved.

That's what happened in 2000 when the justices heard Bush v. Gore as a matter related to the Equal Protection Clause of the Constitution.

And with only eight justices on the court — and they have already indicated an unwillingness to tackle controversial topics — the chances that the high court would get involved are thin.

There is another path to challenge — one that is much harder. The ultimate decision on who becomes president actually rests with Congress. The above-mentioned Electoral Count Act states that Congress meets in a joint session on Jan. 6.

For all practical purposes, this is just a formality, but there is precedent for roadblocks: There can be a challenge to the electoral college. It requires a member of the House and a member of the Senate to submit a challenge in writing. If that happens, the two houses of Congress would go back to their chambers to debate the challenge.

It actually happened in 2005 when Ohio's 2004 results were challenged. In the end, obviously, the challenge was rejected, and Bush and his vice-president Dick Cheney were re-elected.

If Congress were to determine that neither candidate has the needed 270 votes — and it could happen through the regular vote or if one or more states is unable to certify their votes or get their electors appointed — then the whole thing goes to the House of Representatives.

If that happens, each state gets one vote.

The Constitution is clear that if one of the candidates ends up with the majority of electoral votes, they win. And that is regardless of what the popular vote is. Remember — three times (1876, 1888 and 2000) the electoral college result was different from the popular vote.

So, what would happen if — for example — Trump loses but manages to tie things up in court past Jan. 20 when the president is supposed to be sworn in?

If the court challenge was preventing both the president and vice-president being sworn in ... say hello to President Paul Ryan (assuming he is still Speaker of the House). It would be that way until things are resolved.

Photos Gage Skidmore via Wikimedia Commons