Electors must be appointed by December 8th. That gives both Republicans and Democrats a hard deadline to finish counting and arguing over the vote totals beforehand. Electors are assigned according to the popular vote, and very few are "faithless," in that they cast their votes for a different candidate than the one they were assigned for.
However, in Bush v. Gore, the Supreme Court gave states the power to choose electors by OTHER than the popular vote.
Republican-led states can, literally, change who is an elector however they choose, and the rules for doing so differ by state. The Republican party allegedly has plans to recommend that very step. Trump is certain to lean on states to do so, probably based on "voting fraud." They'd be charged with "doing the people's will" instead, according to Gellman.
Republican politicians control both legislative chambers in six key states. Of those, Michigan, North Carolina, Pennsylvania, and Wisconsin have Democratic governors. Arizona and Florida have Republican governors.
Would Trump or Republican politicians really pressure states to do this? The Atlantic asked the Trump campaign, which prompted this email response from one staffer. “It’s outrageous that President Trump and his team are being villainized for upholding the rule of law and transparently fighting for a free and fair election.” By now, we know that such language means Yes.
We've all figured that Trump wants his election thrown to the Supreme Court, which he'll have packed with conservatives by the end of the year, if not before the election. But the results may not go to SCOTUS, at least not immediately: They may go to the senate. Gellman says it's even possible, for some states that have internal arguments over who gets to choose electors, for states to wind up with rival panels of electors on December 14. In any case, if the states are deadlocked, their votes get kicked to the President of the Senate -- Mike Pence.
In such a situation, the Constitution says that the Vice President opens all the state certificates in front of the senate and counts the votes. But who does the counting? Which certificates are counted? Gellman writes. The answer isn't clear, and the 12th Amendment, which is intended to clarify, does just the opposite. Pence could choose to reelect himself and Trump.
And then it may be indeed be up to the Supreme Court to choose the winner by the way it decides to clarify the 12th Amendment. If that happens, Trump's rough, rushed Supreme Court appointment, which would make the Court almost comically one-sided, will be under the same pressure as SCOTUS was for Bush v. Gore, except with a tougher law to interpret.
Still, "conservative" at SCOTUS means, at least for some justices, a particular reading of the Constitution -- not a fuzzy nostalgia for the bad old days. You never know. SCOTUS might surprise us all.
We can always hope.
Do you think that the country as a whole will remain peaceful while a process like this goes on? Do we really want lawyers to be the ones battling over fair election standards? What will happen if Trump loses? What will happen if Trump wins?
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