The first scenario starts with voting rights groups suing on behalf of Philadelphia voters who did not get absentee ballots in time to vote. That delay triggered legal battles, first in state court, seeking to extend the election so that Philadelphians and any other similarly affected Pennsylvanian could vote. (In 2018, the Pennsylvania Supreme Court, citing the state Constitution's protection of voting rights, overturned an extreme gerrymander by the Republican-majority legislature in 2011. That case's ruling suggests that the court might be open to extending voting in November.)
But the Republican Party of Pennsylvania does not sit idly by. It filed a federal lawsuit to stop that extension of voting, creating what New York University Law School's Samuel Issacharoff said was a key feature of this scenario: "a turf war" between federal and state courts. (In Wisconsin's April 7 primary, the Wisconsin Supreme Court, federal district court and U.S. Supreme Court issued contradictory rulings concerning absentee ballots. The U.S. Supreme Court ordered the election to continue -- including not extending the deadline for voters not receiving absentee ballots.)
Richard Hasen, a University of California, Irvine, law and political science professor, found the scenario disturbing on many levels. He initially focused on the pragmatic task of extending a vote-by-mail election in a state that did not have a history of widespread absentee voting (which is occurring in many states in response to the pandemic).
Court orders can prompt unintended consequences, Hasen said. "We saw it in the Wisconsin case, where the Supreme Court went to the postmark [date on the ballot as a deadline for it to count]. That turned out to create a whole bunch of new issues because there was not consistency in how the local election boards dealt with non-postmarked ballots."
Teasing out these scenarios left Hasen and others with an uneasy de'jà -vu feeling.
"I was having nightmare flashbacks to Bush v. Gore -- actually back to Bush v. Palm Beach County Canvassing Board, the first case," he said, where there were questions about whether a state constitution could legitimize "changing rules for presidential elections" without the state legislature affirmatively agreeing to those changes."
"If that question arose [in November], I expect that we would see exactly the same ideological partisan division between conservatives and liberals, between Republican-appointed justices and liberal-appointed justices, should it get to the Supreme Court," Hasen said. "I don't think that we have made any progress in 20 years... You can hear the arguments being made here, the echoes of exactly what we heard in Bush v. Gore."
The Pennsylvania scenario is not without a factual basis. Problems with delivering and counting large volumes of absentee ballots occurred in the first two statewide elections held since the pandemic broke in mid-March: Wisconsin's presidential primary on April 7 and Ohio's primary on April 28. In Wisconsin, more than 150,000 absentee ballots were not returned on time or were disqualified for other reasons, according to an April 30 court filing by the Democratic National Committee and state Democratic Party.
As of May 7, more than a week after Ohio's primary, the state's 88 county election boards had yet to account for 199,693 "outstanding absentee" and 44,368 "outstanding provisional" ballots, according to the Ohio secretary of state's website. These are not small numbers from either state. The volume of Wisconsin's rejected ballots in its low-turnout April 2020 primary was more than six times the size of Trump's 2016 margin over Hillary Clinton in that state.
Later in the nearly five-hour discussion, Michael Morley, a Florida State University law professor, made a telling point that suggested that the Democrats' intention to protect the vote in the Pennsylvania scenario could backfire. Any major last-minute voting extension was likely not only to be rejected by federal courts -- following the U.S. Supreme Court's Wisconsin primary ruling, he said. But that last-minute change also could give the GOP-led legislature a legal excuse and argument to act on its own to certify a pro-Trump slate of electors -- and send it to Congress without the Democratic governor's signature.
"You could imagine situations where the legislature is stepping in to say... 'We are appointing a slate of electors reflecting what we perceive to be the accurate outcome based on the election as it was conducted in accordance with state statute -- not with what appears to be this judicial deviation from state statute,'" Morley said.
Scenario Two: Overriding the Popular Vote
In the Michigan scenario, Trump declared victory before the vote counting was finished and officially certified. Following his cues on Twitter, its Republican-majority legislature certified a pro-Trump Electoral College slate and sent it to Congress -- ignoring the state's Democratic governor, secretary of state and attorney general. In response, the Michigan Democratic Party sued in federal court, citing much the same legal argument that the GOP used in the Pennsylvania scenario: you can't change the rules in midstream.
"This scenario is built on the concept of the so-called 'blue shift' or late-counted ballot scholarship that some of us have been involved in," explained Foley, "which is a phenomenon where, with nothing going wrong, but just because of the way in which we have done changes to voting since 2000 and the Help America Vote Act of 2002, it's just much more likely that ballots are going to be counted, not on election night, but subsequently during the [post-Election Day] canvassing process."
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