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Their May 4 teleconference parsed a series of nightmare scenarios in the aftermath of the November 3 election that would lead to competing Electoral College results being sent to Congress from battleground states -- one issued by a Republican legislature backing Trump, and another issued by the Democratic governor backing Biden.
The scenarios continued onto January 6, 2021, where, in a joint congressional session to ratify the Electoral College votes presided over by Vice President Mike Pence, the House and Senate were sent to their chambers to debate for two hours. When they reconvened, the Senate backed the Trump electors while the House backed the Biden slate.
"My big fear, as a country, is that we don't know our history well enough to know that we came within 48 hours of inauguration day with two people claiming to be president, and the incumbent thinking about martial law -- that was Ulysses Grant because he was worried that there were going to be two simultaneous inauguration sessions," said Edward B. Foley, director of Moritz College of Law's election law program at Ohio State University and a national authority on disputed presidential elections. He organized the brainstorming session with Steven F. Huefner, a Moritz senior fellow and former U.S. Senate counsel who also is an expert on vote-counting disputes.
"To replicate that kind of thing [a cascading crisis] on January 18, 2021, in an era with nuclear codes, seems to me an altogether more problematic scenario than even the dire circumstances of March 1, 1877," Foley continued, referring to the date Congress convened in the Hayes-Tilden dispute. "So it may be a Don Quixote quixotic effort to try to wrestle these legal problems into the ground. But I feel some responsibility to say that we have actually been there as a country once before, and it was not pretty. There might be no avoiding [a calamity] if we go down that road again."
Never before in recent history have the nation's top constitutional and election scholars convened six months ahead of a presidential election to ward off what they fear could be a constitutional meltdown if an incumbent president and his most strident partisan allies seek to disrupt or disregard counting votes and the transfer of presidential power.
Lighting the Fuse
Three nightmarish scenarios were put before the legal and electoral scholars:
- In Pennsylvania, an outcry emerges after thousands of Philadelphia voters have not received absentee ballots. Civil rights activists sue, and the Pennsylvania Supreme Court extends the election for these voters -- and anyone else in the state not getting their ballot. Pennsylvania's Republican-majority legislature counter-sues in federal court to block the extended voting, but it doesn't stop there. The legislature uses the extension as an excuse to certify a pro-Trump Electoral College slate and submits that result to Congress.
- In Michigan, the crisis begins when early but incomplete election night returns show Trump ahead. But as the counting continues and the momentum starts to shift to Biden, Trump tweets that he won and declares that enough votes have been counted. Michigan's Republican-majority legislature follows Trump's tweets and certifies a pro-Trump slate of presidential electors. That unilateral move prompts the Michigan Democratic Party to sue in federal court, using an argument that's similar to what Republicans cited in the Pennsylvania scenario: pre-existing election rules cannot be ignored.
- In the final scenario, in Florida, a state with a GOP governor and legislative majority, the governor cancels the election due to a major hurricane. It cannot be rescheduled before December 14, 2020, when the national deadline falls for all of the presidential electors to cast their ballots. Emergency legislation ensues, and Republicans authorize a pro-Trump Electoral College slate -- citing pre-election polling. The Florida Democratic Party sues in federal court, claiming that Florida's GOP cannot nullify a popular vote election.
The academics were some of the nation's most respected constitutional law scholars, election law experts and political scientists. Apart from the U.S. Constitution, the only federal law laying out how to resolve a disputed presidential election was the Electoral Count Act of 1887 (ECA).
That little-known law took 14 years to craft, with debates going back even before the 1876 presidential election debacle. According to a scholarly article by DePaul University's Stephen Siegel said by some teleconference participants to be the most authoritative modern exposition on the ECA -- the law was "turgid," "repetitious," and "contradictory," and it had been incorrectly interpreted by the U.S. Supreme Court when it stopped Florida's presidential recount in 2000, elevating George W. Bush to the White House.
These nightmare scenarios and the prospect of an obscure 133-year-old law deciding a post-election battle between Trump and Biden led the scholars to say that even with its flaws, some principles or norms in the ECA had to be clarified before November.
"In the context we're imagining, any kind of rule structure that can be put on the table in any greater clarity to the focal point that we have with the Electoral Count Act is desirable because you're basically in a civil war context at this point -- or very close to it," said New York University Law School constitutional law professor Rick Pildes. "I think that is as much as you can hope for. It may be meaningless at the end of the day. It may become a focal point in the midst of this civil war-like scenario."
Scenario One: Philadelphia Disenfranchisement
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