“Six Scenarios for Confusion in Counting the 2020 Ballots: Not Just Scary Campfire Stories Any More”

Lou Jacobson for the Cook Political Report:

Every four years, political obsessives like to scare themselves like kids around a campfire, sharing stories about weird presidential election outcomes — such as a divergence between the popular and the electoral vote (which is now old hat, having happened twice in recent memory), or a 269-269 electoral college tie, which would send the election to the House, with every state, from California to Wyoming, getting one vote for president.

But this year, in an era of hyperpartisanship, norm-breaking, and declining voter trust in institutions, new and even scarier scenarios are bubbling to the surface. 

Earlier this month, some 30 political scientists met virtually for a public webinar and discussion of outlandish, yet hardly implausible, scenarios of how the 2020 presidential election could devolve into chaos. It was convened by law professors Edward B. Foley and Steven F. Huefner of Ohio State University. (The full video can be accessed here.)

The scenarios fell into three time periods. 

The period from Election Day to the meeting of the electors in the states. (Procedural nerds will know that the electors meet on the first Monday after the second Wednesday in December, or Dec. 14 this year.) 

The period from the electors’ meeting to the day that Congress counts their votes, which is fixed by statute on Jan. 6

The period between the counting of the electoral votes to the inauguration on Jan. 20

Each of these three periods, the participants agreed, offers its own unique set of legal and constitutional landmines.

The virtual meeting was designed to forge an academic consensus over how some of these scenarios should be handled under existing constitutional and statutory precedent before partisan lenses color any such decision.

“It’s important to have this discussion now, rather than in December,” Richard L. Hasen, a professor of law and political science at the University of California-Irvine, told the group.

That said, the participants displayed enough disagreements of interpretation during the webinar that reaching even an academic consensus looks difficult, to say nothing of getting all politicians and both major parties on board in the less-than-six-month window before November’s election.

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