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Analysis: Pay attention to nightmare election scenarios. One might come true

What they mentioned in 2016 means nothing right now now that they’ll get a brand new, conservative Supreme Court docket justice.

What they’ll do, they’ll do. Simply as it’s a must to have a look at the letter of what is doable to conclude they will have a brand new Supreme Court docket justice on the bench earlier than or quickly after Election Day, you must also look to the letter of what is doable relating to the presidential election itself.

President Donald Trump on Wednesday mentioned a brand new justice should be put in particularly as a result of there’s an election coming. He presumably desires the insurance coverage of a further conservative on the court docket.

The letter of what is doable below the regulation in an in depth election is extraordinarily ambiguous, which is sufficient to lead anybody down any variety of maddening rabbit holes.

And with Trump in cost and predisposed to rejecting election outcomes, it’s a must to go down each, as the journalist Barton Gellman does in a really frightening Atlantic piece about how Trump’s allies may logically circumvent outcomes if he can dispute them in particular states.

These are the fringiest nightmare situations. However in a time when Trump is prepared to name the Nationwide Guard to US cities, they’re price contemplating.

The obvious factor to recollect, as college students of American historical past and readers of this article and everybody who voted for Hillary Clinton is aware of, is that the Electoral School picks the President.

And the letter of the regulation can also be that, in accordance with the Supreme Court docket in Bush v. Gore, states have the facility to take electoral votes again from the voters if there is a query in regards to the end result, as they basically did in Florida in 2000 after they barred the state from conducting a recount in order that it may meet a deadline.

As an example, the Structure says a brand new President should take the oath of workplace on January 20.

With a view to make that occur, a separate US regulation — the Electoral Depend Act — set a timetable for counting Electoral School votes. That is the timetable cited by the Court docket in Bush v. Gore. And it suggests disputes about outcomes should be settled 35 days after Election Day.

Read Joan Biskupic’s story about Bush v. Gore and the Electoral Depend Act right here.

Key dates this 12 months, in accordance with Biskupic:

  • December 8, when states should decide their election outcomes
  • December 14, when state electors really convene within the states to solid their votes for president and vp

Key phrase: “protected harbor.” Biskupic once more: That first deadline, six days earlier than the Electoral School meets, is called a “protected harbor” date, when all court docket challenges must be resolved. If states certify their outcomes by then, their validity should be accepted by Congress.

Vote counting within the pandemic election, with a crush of mail-in ballots, is already presupposed to take for much longer than traditional. Trump has already mentioned, repeatedly, that in his view solely what’s recognized on Election Evening issues. This isn’t true, after all, however he’ll maintain saying it.

Disputes over state outcomes: In a 12 months when the President has already repeatedly alleged fraud, albeit with none proof, delays could possibly be exploited.

Gellman factors out that in 2000, the court docket, while it was supposed to be limited to that one instance, basically deferred to the state over the voters to certify Florida’s electors.

“The State, after all, after granting the franchise within the particular context of Article II, can take again the facility to nominate electors,” the late Justice Antonin Scalia wrote in Bush v. Gore.

And Gellman talks on the report to Republican officers within the swing state of Pennsylvania who say they’ve no less than considerably thought of how the state legislature may appoint electors within the absence of a transparent Election Evening victory.

Political scientists have gamed this out and there are a number of possible scenarios, none of that are satisfying.
The Electoral Depend Act, written after the 1876 presidential election when there have been a number of states with disputed Electoral School outcomes, is stuffed with loopholes and ambiguity. In that case, Congress finally agreed to present the White Home to the one who led neither the Electoral School nor the favored vote, which in right now’s America, can be a horrible end-result.
Vote by mail: We have got a brand new Politics 101 podcast on voting by mail. Listen here.
Vote in particular person: There is a rising variety of specialists who say that if you’re healthy enough to vote in person, early or on Election Day, you should, to make outcomes clear earlier.

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