Ned Foley for Politico:

In this situation, the Supreme Court could step in to resolve the dispute. But the odds of that happening have probably decreased due to the vociferous criticism of the Bush v. Gore decision. Not to mention that in the wake of Justice Antonin Scalia’s death, there could still be only eight sitting justices in November; that also makes it more likely the court will stay out of the matter this time.

Under the Constitution’s Twelfth Amendment, the fight would then fall to Congress—which entirely lacks adequate procedures to decide a presidential election. In fact, the process for settling election disputes is so messy and uncertain that even experts disagree about how it’s supposed to work.

What Congress does have is that tangled 809-word statute passed in 1887 as part of the Electoral Count Act. The statute is intended to resolve disputes when a single state submits two different Electoral College vote counts—for instance, if there’s a contested county and its votes are enough to swing the state—and the Senate and House then split over which of the two counts to accept. With language so convoluted it was deemed “unintelligible” by the nation’s leading political scientist at the time of enactment, the law leaves debatable exactly what’s supposed to happen in this situation. Passed as a stopgap measure, it has never been replaced with a clearer or more executable plan.

A key provision of the act says that if the House and Senate are split, the governor of the state in dispute becomes the tiebreaker. This provision, still with us, presents two problems. First is the possibility of a serious conflict of interest for the governor. For instance, in 2000, Florida Governor Jeb Bush might have been tasked with deciding the election that his brother George went on to win. (That eyebrow-raising scenario did not come to pass because the Supreme Court decided Bush v. Gore before the Electoral College meeting in Florida that year, so Florida sent only one set of Electoral College votes to Congress after Al Gore conceded defeat.) This year, if Ohio turns out to be the pivotal state, as is certainly plausible, Governor Kasich might be in a position to pick the winner single-handedly. This would be strange enough if he’s just a former contender in the race, and stranger still if he is the GOP’s presidential or vice-presidential candidate.

The second problem is that the law is so hopelessly incomprehensible, it’s ambiguous as to whether the governor-as-tiebreaker scenario applies in all cases in which a single state sends two Electoral College submissions to Congress, or only in a much narrower subset of these cases. The latter view holds that, except for in some relatively rare situations, Congress is obligated to treat the disputed state’s Electoral College proceedings as null-and-void regardless of what the governor certifies. In the Ohio hypothetical, the debate would be whether to count Ohio’s votes as certified by Kasich, or instead to toss out the votes entirely as uncountable. Proponents of each interpretation of the law could cite arcane scholarly articles in support of their dueling positions, but the debate would hardly be academic—each view would produce a different presidential winner.