Harvard Law Review blog post from Ned:

The point of this analysis is not to be overly alarmist. The risk of mailed ballots being destroyed so that they cannot be counted is, presumably, extremely low. Nevertheless, the point is to observe the vulnerability that exists in the system of counting Electoral College votes if this unlikely scenario did materialize. It would be necessary to rely upon a normative commitment to small-d democracy on the part of Senators to guide the nation through the crisis. One could not rely on the existing rules and procedures of law to be adequate to the task.

The lesson is that, to assure a presidential election’s conformity to the basic democratic value that a state’s electoral votes reflect the will of the popular vote in the state — a democratic value resoundingly reaffirmed by the Supreme Court in the “faithless elector” case — it is essential that partisan politicians abide by this basic norm. The entire problem of a single submission of electoral votes deviating from the will of the popular vote could be averted if the state’s legislature committed not to act, based on partisan allegiance, contrary to the popular vote. The state legislature — even if dominated by members of the opposite party — could appoint electors in accordance with this clear understanding of what the popular vote would have shown.