I have written this piece for Slate (major spoilers!). It begins:
As election nightmares go, Sunday night’s episode of the HBO series Succession, “America Decides,” was a doozy. It was the most uncomfortable hour of scripted television I have ever watched, and apparently I was not alone in being triggered. But it was not just a “good night of TV,” the ultimate result of which would be that “nothing happens,” as Roman Roy tries to assure his sister Shiv; it is a warning to us that the next election meltdown is always potentially around the corner….
And the episode performed a public service because it shows how, even after 2020, our elections still face serious risks of not producing a fair and democratic winner. Most states, including Wisconsin, do not have laws on the books to deal with election emergencies or dirty tricks like the (maybe arson) fire.
No doubt the candidates and others would turn immediately to state and federal courts for relief. Given the truncated nature of Electoral College voting, the entire dispute would have to be litigated to conclusion in just a number of weeks before Congress convened to count electoral college votes (not in “three months” as suggested in the episode by an ATN executive.) It would be a litigation circus and nightmare in multiple courts with multiple theories.
Wisconsin’s election statutes do not appear to speak to what would happen with the massive destruction of ballots on Election Day. Many states interpret vague election statutes to favor enfranchisement of the voter, but Wisconsin gives less protection for absentee ballots, as the key state Supreme Court Justice in the 2020 case of Trump v. Biden explained. If the justices on the state Supreme Court divided along party lines, as is often (but not always) the case, thanks to the recent election of Janet Protasiewicz, the court likely would side with left-leaning candidate and offer some kind of remedy. Doing so would prevent voter disenfranchisement. If the same scenario were to take place in a potential tipping point state that had a more conservative-leaning state Supreme Court such as North Carolina, however, it could go another way.
To carry on the hypothetical based on the premise of an divided state court with a pro-democracy lean, like in Wisconsin: Perhaps the state court would require a partial revote in Milwaukee, as was suggested by Shiv in the Succession episode and by Claire Woodall-Vogg, executive director of the Milwaukee Election Commission who consulted on the Succession episode. Woodall-Vogg explained that election officials would have records to know whose absentee ballots were destroyed in the fire.
But a revote may violate federal law, which requires that there be a uniform day on election day. (My former dean Erwin Chemerinsky unsuccessfully tried to get a revote in Palm Beach County, Florida in 2000 after many voters were misled to vote for Pat Buchanan rather than Al Gore by the infamous butterfly ballot.) And any order from the state court requiring a revote might violate the so-called “independent state legislature” theory, which if adopted by the Supreme Court would potentially limit state court remedies in federal elections when such remedies are not directly written into a statute. (The scope of this theory is currently before the U.S. Supreme Court in the Moore v. Harper case.)
On the other hand, preventing a revote would clearly violate the equal protection or due process rights of voters protected by the U.S. Constitution’s 14th Amendment. It is easy to imagine a federal district court, particularly one in Milwaukee, saying that the Constitution requires a revote or some other remedy to prevent disenfranchisement.
Ultimately, the case would be decided by the United States Supreme Court, where, in some of the most contentious election cases, the justices split along party lines. Who is to say what this court might do?