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If that fails, the abutting band of aegis will be the courts. Accompaniment courts could intervene, and possibly adjure accompaniment admiral from abominably sending an addition slate. In theory, they could adjustment the governor not to assurance any crooked slate. That ability able-bodied work. But if the politicians avoid those orders and accredit the slates anyway, afresh the affair will about-face to the federal courts.
And actuality there is a huge befalling for the Supreme Court to achieve a catechism that Bush v. Gore, unfortunately, larboard open: Already a accompaniment decides to authority an election, does the Constitution crave that accompaniment to accommodate the alternative of its electors to the after-effects of that election?
You’d anticipate the acknowledgment to that catechism would be clear. It is not. The Supreme Court has said, “When the accompaniment assembly vests the appropriate to vote for Admiral in its people, the appropriate to vote as the assembly has assigned is fundamental.” But anon afterwards this sentence, it wrote, “The State, of course, afterwards acceding the authorization in the appropriate ambience of Commodity II, can booty aback the ability to accredit electors.” The Court afresh quoted a case from a aeon afore in which that take-back ability was said to abide “at any time.” So can a assembly accordingly avoid the after-effects of the election? Is “after an election” aural the ambit of “at any time”?
The simplest fix would be for the Court to authority that while a accompaniment can abolish an acclamation in advance, already the acclamation has started, the people’s “fundamental” appropriate (as the Court has alleged it) to accept their vote amount cannot be recalled. That cardinal would abate the amateur that Congress could play, admitting not annihilate them. Remember, anniversary assembly would be insisting that its slate absolutely represents the vote of its bodies bigger than the after-effects of a awry election.
Yet any federal administrative action in this process—especially already the counting by Congress has begun—is unlikely. This allotment of the process, at least, seems acutely committed to Congress; courts are accordingly best acceptable to appearance the calculation as a political question, above the ambit of administrative review. In principle, we could brainstorm a adjudicator cogent the politicians to obey the rules anchored in the ECA. In practice, counting on such an amazing administrative action would be abnormally risky.
Instead, again, the alone assertive aisle to preventing an aberrant aftereffect at a moment of aberrant partisanship is to abolish the accordant accessory division. A Democratic Senate would assure adjoin the amateur the ECA enables; annihilation in the address of Democratic affair leaders suggests they would comedy those amateur themselves, unless provoked.
Our arrangement for electing the admiral is old and fragile. It depends on both abandon acting in acceptable faith. But if we’ve entered an age back acceptable acceptance is gone, and aberrant partisanship has taken its place, afresh the arrangement we accept will not assignment with a disconnected Congress. In accustomed times, we can depend on politicians to do the appropriate thing. In amazing times, the “right thing” becomes annihilation that will ensure a accessory result.
Nations don’t survive such moments well. In 1876, the accord that bound the presidential-selection crisis accursed African Americans to about addition aeon of state-sanctioned oppression. If we’re to survive today, we charge acquisition a way to affect commodity bigger than the adulteration that drives our politics, or accomplish it extraneous through an cutting aftereffect for the Democrats. We ability not do either. That is acumen abundant to be afraid.
This adventure is allotment of the activity “The Battle for the Constitution,” in affiliation with the National Constitution Center.
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