President Trump and Attorney General Barr can continue to attack the use of vote-by-mail ballots for November’s election, but the rules were largely set even before the pandemic struck, and they are unlikely to change significantly before voting actually begins in a few weeks. Key battleground states — including Michigan, Pennsylvania, and Wisconsin (the three that Hilary Clinton lost so narrowly in 2016) — all currently have “no excuse” vote-by-mail laws, which means any eligible voter in the state has a right to choose according to the voter’s own preference (and without need for any additional justification) a mail-in ballot rather than voting in-person. Consequently, there is every reason to expect that when Americans vote in this fall’s presidential election, many millions of them will be voting by mail despite President Trump’s efforts to the contrary.
But will these mailed ballots be counted? That is a separate question. Answering it shows the acute vulnerability to mischief of the constitutional and congressional rules for conducting presidential elections.
The following exercise in “what if” imagination is not offered on the grounds that any of its specific scenarios are likely to happen — readers can assess the odds for themselves — but instead to point out basic vulnerabilities in the nation’s existing constitutional and statutory framework for handling this kind of situation if it were to occur. Identifying risk is the necessary first step to evaluating what steps, if any, can and should be taken to mitigate the risk. In the absence of constitutional or statutory reform, moreover, there is inevitable need to rely on norms and not just law as part of any risk mitigation strategy, and that is a key lesson of this “what if” analysis.