This guest commentary is part of a series on American election integrity

IT IS NOVEMBER 3RD 2020, election day in America. And a mess of unprecedented gravity is brewing.

Americans follow results much as they watch the Super Bowl: they expect to know the winner before they turn off their televisions. But this time, with tens of millions of mail-in ballots still to be counted, television anchors note that it may take days, even weeks, to announce a winner. This, they insist, is not a sign that the system is malfunctioning but a consequence of an election during a pandemic.

From the White House, however, a different message emerges. Early election returns show President Donald Trump leading in the swing states. This is unsurprising given that the overwhelming majority of Mr Trump’s supporters have chosen to vote in person, whereas a greater share of Joe Biden’s supporters, who tend to live in urban areas more vulnerable to the spread of covid-19, have voted by mail-in ballot.

Some states, such as Colorado, have been tallying their mail-in votes from the day they arrived—but not the swing states of Michigan, Pennsylvania and Wisconsin. They do not allow counting to begin until election day.

Come midnight, the president sends out a tweet thanking the American people for his historic re-election. Mr Trump had sketched out this strategy back in July. On the same day that he suggested delaying the November election—something he has no power to do—the president posted another, more revealing tweet:

Must know election results on the night of the Election,
not days, months, or even years later!

This tweet, largely overlooked at the time, had offered a disturbing precis of the strategy Mr Trump now deploys.

As the counts of mail-in ballots begin to eat into his election-day lead, Mr Trump declares that all his most dire predictions are coming true—the mail-in ballots have been corrupted by Democratic operatives intent on stealing the election.

Trump’s reliable megaphones in the right-wing media amplify his claims. Both domestic and foreign actors—in particular, Russia—bombard social media with fake news. Small instances of harmless human error (such as the incident in September, when a temporary election worker in Luzerne County in Pennsylvania accidentally discarded nine mail-in ballots, prompting a Department of Justice inquiry) become grist for wild conspiracy theories. And Mr Trump works tirelessly to ensure the count of mail-in ballots is plagued by delays, questions and confusion, deploying teams of lawyers to challenge the vote in any way possible.

The counts in the three swing states become bogged down in litigation. The New York Democratic primary in June offered a disturbing foretaste of what we now see. Election officials took six weeks to determine who won the state’s 12th and 15th congressional districts.

But Michigan, Pennsylvania and Wisconsin do not have six weeks to complete the count. Federal law stipulates that states appoint their electors six days before they officially gather in their respective state capitals to vote. Electors across the nation are scheduled to convene on December 14th, meaning the states have until December 8th to finalise their counts. Should they fail to meet this “safe harbour” date, Congress need not accept the state’s results as conclusive. This was Congress’s way of telling states to resolve their election controversies in a timely fashion, but the law did not provide for an election conducted in a pandemic.

Overworked and undertrained election officials—slowed down by the need to maintain social distance, overwhelmed by the huge volume of mail-in votes, and constrained by litigation— struggle to meet the December 8th deadline. Mr Trump’s lawyers, aided by the Department of Justice, continue to swamp the states with suits seeking to disqualify mail-in ballots on technical legal grounds, such as arriving late or missing signatures.

Things now take a more alarming partisan turn. Michigan, Pennsylvania and Wisconsin share the same political profile: all three are controlled by Republican legislatures faithful to Mr Trump. The lawmakers, citing concerns about counting irregularities and the prospect of missing the December 8th deadline, now decide to declare Mr Trump victorious in their states. They note that a federal law from 1845 authorises the legislature to appoint electors in circumstances in which the state has “failed to make a choice”.

Yet Michigan, Pennsylvania and Wisconsin also have Democratic governors, who accuse Republican lawmakers of bad faith. Their states, they insist, have “made a choice”—and it’s Mr Biden. Each declares him their state’s winner, and sends the certificate cast by his electors on to Congress.

It is now January 6th 2021, the designated day on which a joint session of Congress opens the states’ electoral certificates and officially tallies the votes. Normally this is a ceremonial function. But not this time. The new Congress—sworn in just three days earlier, on January 3rd—confronts an astonishing situation: Michigan, Pennsylvania and Wisconsin have each submitted conflicting electoral certificates. The election hangs in the balance.

Sound far-fetched? Think again.

The nation faced a nearly identical catastrophe in the notorious Hayes-Tilden election of 1876, when three states submitted conflicting certificates. With neither Rutherford Hayes nor Samuel Tilden enjoying an electoral-college majority, a divided Congress—a Democratic House and a Republican Senate—fought bitterly over which ones to recognise. Congress tried to resolve things in early 1877 by handing the problem to a one-off special electoral commission, but partisan rancour plagued the work of that body, too. Inauguration Day neared and the nation had no president-elect—or rather, it had two rivals claiming victory. President Ulysses Grant weighed declaring martial law.

Chaos was avoided only by a disastrous compromise: the Republicans agreed to remove federal troops from the South, stationed there since the Civil War ended 11 years earlier. The deal opened the door to the South’s imposition of Jim Crow laws, the system of state-sanctioned racial segregation that persisted well into the 20th century. In return, Tilden, the Democrats’ candidate, agreed to concede. To avert another mess, Congress passed a law, the Electoral Count Act of 1887—the same law that created the “safe harbour” date. Meant to guide Congress should an election dispute ever again land in its lap, the law has been used by Congress only once—in 1969 for a trivial issue that had no bearing on Richard Nixon’s victory.

But now, in January 2021, Congress finds itself in much the same mess as in 1877. True, meltdown can be avoided if the Democrats capture the Senate and hold the House; the joint session would recognise Mr Biden’s certificates. But if Congress remains divided—or if the composition of the Senate remains unresolved because electoral disputes likewise infect key senatorial races—then the result can be foretold: the Senate and the House uphold rival sets of certificates.

The nation finds itself in a true electoral impasse. Lawmakers invoke the 1887 law but quickly discover its glaring deficiencies. The law, for example, instructs Congress to accept all electoral votes that have been “regularly given”—without, however, defining what “regularly given” means. Indeed, the law suggests the Congress must accept such votes—unless it chooses not to.

Days of acrimony follow. Attempts to create a one-off special commission to resolve the impasse, similar to that of 1877, fail amid partisan bickering about its composition. Both parties appeal to the Supreme Court, but the court—in sharp contrast to its intervention in 2000 in Bush v Gore—proves unable to solve it. With experts insisting that the court has no role to play in resolving an election dispute once it reaches Congress and with lawmakers in both parties declaring that they would not abide by an unfavourable ruling, the justices choose not to intervene.

Come noon on January 20th, Mr Trump’s term in office constitutionally ends, and the nation has no president- or vice-president-elect. By the terms of the Presidential Succession Act of 1947 the office then goes to the Speaker of the House of Representatives. So Nancy Pelosi is sworn in as acting president. Mr Trump insists that the Democrats are staging a coup, and threatens to hold a separate inauguration ceremony. The nation finds itself in a full-blown crisis of succession from which there is no clear, peaceful exit.

In its 230 years of constitutional governance, America has managed to avoid a catastrophic presidential election. Luck and the character of those seeking the office have allowed us to largely ignore the defects in our antiquated and undemocratic method of selecting a president. In 2020 that string of good fortune may end.

It need not come to this. A decisive Biden victory would limit Mr Trump’s power to engage in constitutional brinkmanship. Leading Republican lawmakers, such as Mitch McConnell, could put pressure on the president to stop his fight. But if the election turns on a late count of mail-in ballots and on razor-thin margins in a handful of swing states, prepare for chaos.

Lawrence Douglas is a professor of law, jurisprudence and social thought at Amherst College and author of several books on law and politics, most recently “Will He Go?: Trump and the Looming Electoral Meltdown in 2020” (Hachette 2020).

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