Will Democrats use the nuclear option to blow up the election?
By Kristin Tate, opinion contributor — 09/13/20 02:00 PM EDT
Imagine waking up the morning after November’s presidential election with an unclear result. Suppose that Donald Trump fails to capture the popular vote by a wider margin than he did in 2016, and loses several states he carried that year. With a slim majority in states like Florida or Pennsylvania, he could still garner 270 electoral votes. Would the Democrats accept such an outcome? There is a substantial chance that Democratic-led state legislatures could effectively overturn the results of the election through a means available in the Constitution. This “nuclear option,†as I call it, has never been tried before but could bring the nation to its knees.
If there is a narrow Trump win in one or more Democratic-controlled states, or an otherwise contested result, there is a chance that the process would be completely taken out of the hands of voters. Recent precedent and a Constitutional technicality could result in a perfectly legal loophole where Trump wins the required number of states and yet Joe Biden is sworn in on Inauguration Day.
Current tradition dictates states, and several districts in Nebraska and Maine, to send delegations to the Electoral College based on the local popular vote victor. However, our longstanding electoral mechanism can change. A landmark decision from the Supreme Court, Chiafalo v. Washington, determined that state legislatures can force their electors to vote in a certain manner. Further, Article Two of the Constitution allows for broad discretion by the states to appoint electors, and efforts such as the National Popular Vote Compact further chip away at the idea that a state will definitely send electors to Washington who reflect their state’s popular wishes.
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https://thehill.com/opinion/campaign/516207-will-democrats-use-the-nuclear-option-to-blow-up-the-election