Let me paint a scary but not improbable scenario. It's election night, November 5, 2024, and Trump or a Trump-like candidate such as Ron DeSantis is the GOP nominee. The 2020 census has resulted in three electoral college votes moving from blue to red states. Voter suppression laws passed in Georgia and Arizona targeting minority voters were challenged in court but ultimately upheld 6-3 by SCOTUS.
Voter roll purges, precinct eliminations, and ID requirements for mail-in ballots tip the scales 0.2% in both GA and AZ, and when the votes are counted those states shift back to the red column. The nation awaits results from Michigan to determine who is the president, with the GOP now leading by 1 electoral college vote, 262 to 261. Neither side has 270 votes without Michigan. The map looks like this one.
Dems are confident that the Detroit area votes will go blue by a wide margin but the results are taking longer to come in on election night, per usual. Fox News, OAN and Newsmax begin to warn about "voter dumps" that "should under no circumstances be allowed this time," even though large batches of reported results are quite usual. Angry MAGA crowds gather around the Detroit area election offices, and counter-demonstrators begin pushing back. It's tense, some protestors are armed, and the counting stops out of safety concerns for the workers. As election workers and poll watchers leave for the night, this fuels further conspiracies that the votes are being rigged.
Videos taken out of context show election officials handling ballots and they circulate widely on Signal and Parler with the hashtag #StopTheSteal2024. Trump warns that there will be hell to pay if Michigan is allowed to get away with election fraud. Two Wayne County GOP election officials, handpicked by the state party, cast unfounded doubts on the validity of the vote counts.
The tallies finally come in and Dems take the state by a hair. But the state Board of Commissioners, once again split evenly by party, deadlocks over a certification that out to be ministerial only. Governor Whitmer overrules them and replaces the two GOP board members, citing dereliction of duty. Republicans howl that the election was politically rigged from the get-go. Michigan certifies its electoral college votes and delivers them to Congress. Now the Electoral College tally is 276 to 262 in favor of the Dems, counting Michigan. But the House and the Senate are now controlled by the GOP by just a few votes in each chamber.
The 12th Amendment gives Congress the ministerial duty of certifying the electoral count, but as 2020 proved, that moment can be anything but normal and administrative. And under the Electoral Count Act of 1887, if members of Congress rise to object to the results of a state, as they did in 2020, then a debate follows, with each chamber separately voting on the objection. If the objection is sustained by a majority of both chambers, then the state's electoral college votes may simply be disregarded, and the candidate with the highest number of electoral college votes not including that state would become president.
Back in our nightmare timeline, there is now tremendous pressure on Congressional GOP members to reject the Michigan votes as tainted. Doing so would return complete control of government to the GOP. Trump warns of another "1776 uprising" if the Michigan votes are allowed to stand. Huge MAGA crowds gather in Washington once again. House Majority Leader McCarthy meets secretly with Majority Leader McConnell to hammer out a strategy and keep their caucuses in line for the vote...
The political chaos that would result from Congress rejecting a valid election result based on false claims of fraud would be unfathomable. Many if not most Democrats would refuse to be governed by a president elected in this manner. Yet Republicans would refuse to concede an election they were conditioned to believe was stolen.
In an emergency session, the Supreme Court rules 6-3 that Congress was within its rights to reject the Michigan votes, finding this is a political matter outside the power of the Court to address because there is no process, other than a vote by both chambers of Congress, to determine whether to sustain or overrule an objection to a state's electoral college votes. It orders Vice President Kamala Harris to declare the GOP candidate president based on the sustained objection to Michigan's slate of electors.
This is not mere liberal paranoia. There are in fact a multitude of ways that our closely divided nation's future could hang on a single or a few states' electoral college counts. Indeed, historically speaking, swing states tend to decide our elections. In 2000, it was Florida. In 2004 it was Ohio. In 2016, it was razor-thin margins in WI, MI, and PA, which swung red to elect Trump, then back to blue in 2020 to hand Joe Biden the victory.
The process in Congress by which a deadlock over electoral college votes gets resolved is by design a nakedly political one. It presumes, however, that there will be enough people of good faith in Congress that a valid election will not be thrown out by sheer majority vote. But given the direction of the GOP lately, this can no longer be assumed. In fact, the way the GOP primaries are now looking, the party's make-up in 2022 and 2024 is likely to be more extreme and partisan than ever. The number of Republicans willing to put country over party grows ever fewer by the day.
This is why it is absolutely imperative that Democrats retain control of at least one chamber of Congress in 2022. This will already be an enormous challenge given that it is a midterm election and the party in power usually loses seats.
