Much discussion has been had about mail-in voting, and the elevated amounts of election fraud it enables. But Republicans are kidding themselves if they think dubious mail-in votes are the only shady way this election could be lost in November. Like all electoral systems, America’s democracy is not flawless. It only continues to exist because throughout the country’s history most actors have operated on good faith and have kept institutions going rather than undermining them. But in their frenzy to destroy Donald Trump and everything he represents, the left no longer cares about sustaining norms or institutions. Instead, in 2020, they will exploit every loophole and weak point in the constitutional order to achieve victory. Here are some of those vulnerabilities, plus other fringe situations that could throw the election into total chaos.
1. Congress can refuse to certify the results.
When the Electoral College casts its votes for president, the process isn’t automatic. Instead, the U.S. Congress must certify the results in joint session. The U.S. Code is extremely detailed about the precise process for tallying up electoral votes. And that is exactly the problem. The process looks like this:
Following the start of the new Congress, the House and Senate gather in joint session to read off electoral vote totals submitted by the states. The President of the Senate (i.e. Vice President Pence) calls for objections, which must be made in writing and signed by at least one member from each chamber of Congress. Once all objections are made, each chamber withdraws to vote separately on the merit of the objections If both houses agree that electoral votes from a state were not properly certified, they can be rejected. If multiple sets of electoral votes have been submitted from a state, the two chambers can decide which set was submitted legally and will be counted. If the two chambers disagree over which set of votes to count, then the electoral votes endorsed by a state’s governor are counted. The language is dense, but the ramifications are clear: There are countless ways for a hostile Congress to interfere with the results of the election. Even if Democrats only manage to hold the House, they can gum up the process with objections. The House can then vote to sustain the objections, slowing the process down and muddying up the legitimacy of the outcome. But the most dangerous option is the most direct: If Democrats also take control of the Senate in November, they can simply refuse to certify any result that doesn’t satisfy the party. Alternatively, they could be even more aggressive and certify an alternative electoral college result based on disputed vote totals.
What happens then? Nothing less than a full constitutional crisis. The crisis would immediately go to the Supreme Court, but that would already be a victory for the perpetrators, since there would always be at least a slight chance of the Court siding with them. And if the Court rules against Democrats, it’s entirely possible that the Congress still refuses to submit, perhaps using the presence of a newly-arrived Justice Amy Coney Barrett as an excuse. At that point, Democrats could end up relying on the military to side with them…a possibility that they are definitely preparing for.
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2. Competing electors
The law above directly alludes to another possibility that could turn the 2020 election on its head: A contested state may have both its Republican and Democratic electors claim victory, and try to submit their electoral votes in January.
Imagine, for example, that Michigan ends up as close as it was in 2016, when Trump won by barely ten thousand votes. This time around, Democrats have primed themselves to sharply contest any such outcome as the work of Russian interference or “voter suppression” via the postal service. Michigan now has an ardently Democratic governor in Gretchen Whitmer as well as a far-left secretary of state in Jocelyn Benson (who once worked for both the Southern Poverty Law Center and the NAACP Legal Defense Fund).
So, what happens if Trump narrowly wins in Michigan again, but Whitmer declares the result illegitimate? Michigan’s four-member board of canvassers, with two members from each party, may fail to certify an outcome. Whitmer and Benson could block the state from sending any electors to Washington, or even declare Biden’s electors be the state’s real choice. Michigan’s legislature is controlled by Republicans, though. They could fight back by convening and voting to endorse Trump’s slate of electors. If that happens, both slates of electors could submit their votes to Congress, demanding to be recognized as the “true” choice of Michigan.
What happens then? Nobody knows! A Roll Call analysis from June called the relevant 1887 law “almost unintelligible.” One theory is that Congress would have to accept the slate of electors endorsed by Governor Whitmer. Another interpretation argues that neither slate of electors would be counted. Once again the outcome is a huge mess, forcing all parties to resort to the Supreme Court.
3. Judicial intervention
Many have remarked that the Supreme Court could get involved in the 2020 election, but that understates the problem: Every federal judge in the country has the power to massively sway the election outcome. If there has been one constant of the Trump Administration, it’s that federal judges will seize upon any excuse, no matter how legally specious, to stop the Trump administration and advance liberal causes. In 2018, a federal judge invented a “right to say goodbye” to order the release of a criminal immigrant facing deportation. Other judges have claimed that the president’s tweets bar him from obviously legal acts like imposing travel bans on certain countries or repealing DACA. Just this month, a San Francisco judge blocked the president’s clearly-legal suspension of new H-1B visas meant to protect American workers during the coronavirus pandemic. None of this is sound law. It’s the invention of flimsy legal pretexts to serve the greater goal of stopping Trump.
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