The Republican leader of the Michigan Senate has said the legislature will not appoint its own voters. But if that was the case, and the governor named a competing voters list, it would be up to Congress to decide which one to accept. Several election lawyers said last week that the federal law would favor governor-appointed slate, including if Congress is blocked. Congress could also, in theory, reject Michigan’s electoral votes altogether.
If Congress did that, or if it chose the Republican list against the will of a state’s voters, the country would be in constitutional crisis territory. But that still wouldn’t change the outcome of the election, as there is no single swing state that could erase Mr. Biden’s victory. Several states would have to turn around to make this happen.
In the most chaotic scenario possible, “mom and dad, which is Congress, come in and say this is the one who gets their dessert and this is the one who goes to bed without dinner,” said the Professor Levinson. “The highlight, of course, is that Joe Biden still becomes president on January 20 anyway.”
What does this mean for the American system?
Whatever the outcome, the fact that the Trump campaign and other Republicans have succeeded in wreaking havoc on what should be formalities shows just how possible disruption is in the systems that underpin the democratic process.
What is happening is, in many ways, uncharted territory. Michigan election law makes it clear what happens if a county solicitation board does not certify the results of an election: the state solicitation board takes over. But he does not say what happens if the state also seeks dead ends.
“This is where the wheels come off,” said Professor Levinson. “It’s not terribly surprising to me that they don’t say ‘What if it all falls apart’, because they operate under the assumption that people will work in good faith.
In other words: the system was not designed for this.
A lesson from the Trump era has been that much of American democracy is built not on laws but on standards, which persist by mutual agreement. The Michigan episode is an example of what can happen when consent ceases to be common.
Kathleen Gray contributed reporting.