If that fails, the next line of defense will be the courts. State courts could intervene, and possibly enjoin state officials from wrongly sending an alternative slate. In theory, they could order the governor not to sign any unauthorized slate. That might well work. But if the politicians ignore those orders and certify the slates anyway, then the issue will shift to the federal courts.
And here there is a huge opportunity for the Supreme Court to settle a question that Bush v. Gore, unfortunately, left open: Once a state decides to hold an election, does the Constitution require that state to conform the selection of its electors to the results of that election?
You’d think the answer to that question would be clear. It is not. The Supreme Court has said, “When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental.” But immediately after this sentence, it wrote, “The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.” The Court then quoted a case from a century before in which that take-back power was said to exist “at any time.” So can a legislature therefore ignore the results of the election? Is “after an election” within the scope of “at any time”?
The simplest fix would be for the Court to hold that while a state can cancel an election in advance, once the election has started, the people’s “fundamental” right (as the Court has called it) to have their vote matter cannot be recalled. That ruling would weaken the games that Congress could play, though not eliminate them. Remember, each legislature would be insisting that its slate actually represents the vote of its people better than the results of a flawed election.
David Daley: Courts are taking away one of Americans’ best options for fixing voting
Yet any federal judicial intervention in this process—especially once the counting by Congress has begun—is unlikely. This part of the process, at least, seems clearly committed to Congress; courts are therefore most likely to view the count as a political question, beyond the scope of judicial review. In principle, we could imagine a judge telling the politicians to obey the rules embedded in the ECA. In practice, counting on such an extraordinary judicial intervention would be extraordinarily risky.
Instead, again, the only certain path to preventing an irrational result at a moment of irrational partisanship is to remove the relevant partisan division. A Democratic Senate would protect against the games the ECA enables; nothing in the rhetoric of Democratic party leaders suggests they would play those games themselves, unless provoked.
Our system for electing the president is old and fragile. It depends on both sides acting in good faith. But if we’ve entered an age when good faith is gone, and irrational partisanship has taken its place, then the system we have will not work with a divided Congress. In normal times, we can depend on politicians to do the right thing. In extraordinary times, the “right thing” becomes anything that will ensure a partisan result.
Nations don’t survive such moments well. In 1876, the deal that resolved the presidential-selection crisis condemned African Americans to almost another century of state-sanctioned oppression. If we’re to survive today, we must find a way to inspire something better than the poison that drives our politics, or make it irrelevant through an overwhelming result for the Democrats. We might not do either. That is reason enough to be afraid.