The fighting over things like postmark rules are fights on the edges, the kind of trench warfare that will only matter if the election comes down to hundreds of ballots in a key swing state essential for the Electoral College outcome. But there’s a second play here as well, one that is far more worrisome.
The idea is to throw so much muck into the process and cast so much doubt on who is the actual winner in one of those swing states because of supposed massive voter fraud and uncertainty about the rules for absentee ballots that some other actor besides the voter will decide the winner of the election. That could be the RBG-less Supreme Court resolving a dispute over a group of ballots. Indeed, on Tuesday, Vice President Mike Pence suggested that Justice Ruth Bader Ginsburg’s replacement needs to be seated, possibly without so much as a hearing, in order to decide “election issues [that] may come before the Supreme Court in the days following the election,” including questions involving “universal unsolicited mail” and states “extending the deadline” for ballot receipt. (Never mind that a 4–4 split on the court on an election issue is unlikely.) It could be a Republican legislature in a state saying it has the right under Article 2 of the Constitution to pick the state’s winner in the face of uncertainty. Bart Gellman in the Atlantic recently quoted a Republican operative imagining these state legislatures saying, “All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state.” And it could be Republicans in the Senate—if they keep their majority—not counting Electoral College votes that were cast for Biden based upon manufactured uncertainty. This would lead to a dispute with the Democratic House and lead to a political struggle over the presidency.
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