Norm oped in USA Today:
The vote totals counted and announced on Nov. 3 may be very different from the final tallies. We may see state legislatures or even governors contesting these results, and possibly putting up alternative slates of electors to cast Electoral College votes for different winners. We may find that other deadlines in the law — for states to certify their electors, for the electors to meet, for the votes to arrive in Congress —unable to be met. Courts may intervene, and, as we saw with the primary in Wisconsin and the highly partisan actions of the Wisconsin Supreme Court, may do so with a distinct bias.
If there are contested slates of electors, Congress, under the 1887 Electoral Count Act, has to resolve them. But the law itself is ambiguous, and opportunities for mischief and chicanery are great. Unresolved is the question of whether, if the House and Senate cannot agree on which slates to certify, the electoral votes necessary to elect a president will be the overall 270, or a majority of those electors certified. We also face a possibility that we could have a 50-50 Senate at that time — with potentially a tie broken by the vice president, who has a direct conflict of interest.
hat to do? The best course of action is to bring back Bush and Gore — not to replay 2000, but to lead a commission to come up with a template in advance for how to handle each of these scenarios, and to be available, if and as they occur, to offer advice and set up guidelines for what to do.
Who else would be on the Bush-Gore commission? Homeland security experts like Michael Chertoff, Fran Townsend and Janet Napolitano. Former election officials like Trey Grayson and Mark Ritchie, who served as Secretaries of State in Kentucky and Minnesota, respectively, and Trevor Potter, the former chair of the Federal Election Commission. Election lawyers like Ben Ginsberg and Bob Bauer, who headed an earlier bipartisan commission on election reform. Election law experts like Rick Hasen at the University of California-Irvine Law School and Ned Foley at Ohio State. Political scientists and historians specializing in Congress and the Constitution, former lawmakers, former top executive-branch officials, and perhaps key leaders from the tech, business and labor worlds.
No group of individuals can erase our political tribalism or efforts to suppress votes or put thumbs on the scales of election outcomes. No commission can supersede the actions of lawmakers in states or Congress, or the decisions made by judges. But a group of our most credible citizens, headed by the two who know best the dynamics and consequences of a contested and controversial election, can set out warning signals and lay down boundaries that might guide lawmakers and judges, or at least shed a brighter light if they cross bright lines.