In that event, who ought to be obeyed as commander in chief starting at noon on January 20: a reelected President Trump, or an Acting President Pelosi?
The best time to act to avert this disaster scenario is now—well before the November election. The sooner preventive steps are taken, the easier it is to separate them from immediate partisan calculations. In particular, two important steps can be taken immediately.
One good idea, advanced by Senator Marco Rubio, is to give states three and a half more weeks to count their popular vote and resolve any disputes. He has introduced a bill that would extend the federal “safe harbor” deadline for certifying electors, from December 8 to January 1. This would reduce the chances of a state submitting two conflicting slates of electoral votes.
Second, we support the idea of a bipartisan commission to help guide the resolution of a dispute if the joint session of Congress becomes deadlocked during the two weeks between January 6 and 20. The bipartisan commission could emerge from civil society or be a creation of Congress. But its membership would need to be persuasive to a divided Congress in need of guidance, which would be much more likely if it were appointed by Congress. Moreover, if congressional Republican and Democratic leaders could agree on the structure and composition of such a commission—even if its writ were purely advisory—that agreement could ease the intense atmosphere of anxiety and animosity that suffuses the election.
The scenarios we have sketched here may seem improbable, but they are too risky to ignore. Better to create the commission now and have it be unnecessary than to have January arrive with it needed but nonexistent. And better, in this uniquely challenging election year, to give the states more time to count and certify their votes than to rush the electoral process, at risk of gravely damaging its legitimacy—and that of our entire democratic system.