The Republican leader in the Michigan Senate has said that the legislature will not nominate its electors. But if that happens, and the governor names a competing electoral slate, it will be up to Congress to decide which to accept. Several election lawyers said last week that federal law would favor the list appointed by the governor, including if Congress reaches a dead end. In theory, Congress could also eliminate Michigan’s electoral vote altogether.
If Congress does so, or if it chooses the republican list against the will of the state’s electors, the country will be in a constitutional crisis zone. But it still won’t change the election result, because no single swing state can erase Mr. Biden’s victory. Multiple countries will have to turn that around for it to happen
In the most messy scenario possible, Professor Levinson said, “My mom and dad come, the Congress, and they say this is the one who gets the dessert, and this is the one who goes to bed without dinner.” “The point, of course, is that anyway, Joe Biden is still president on January 20.”
What does this mean for the American system?
Regardless of the outcome, the fact that the Trump campaign and other Republicans have succeeded in pumping a lot of chaos into what should be a formalism shows the extent of the potential disruption to the systems supporting the democratic process.
What is happening is, in many respects, uncharted territory. Michigan’s election law clearly states what happens if the county vote counting board fails to certify the election results: The state’s vote counting board takes responsibility. But it doesn’t say what will happen if the government’s vote counting body falters as well.
“This is where the wheels go,” said Professor Levinson. “It’s not very surprising to me that they don’t say, ‘And if everything collapses,’ because they act on the assumption that people will act in good faith.”
In other words: the system was not designed for this purpose.
One of the lessons of the Trump era is that much of American democracy is not based on laws but on norms, which have continued by consensus. The episode in Michigan is an example of what can happen when approval stops being popular.
Kathleen Gray contributed reporting.