Election 2020

Should Congress Establish an Electoral Commission to Handle Disputes over the 2020 Presidential Election?

Yale Law School Professor Bruce Ackerman and Democratic Rep. Ro Khanna propose an idea that might help avert a constitutional crisis.

|The Volokh Conspiracy |

It's no secret that, if the presidential election turns out to be close, there might be serious disputes over who actually win. President Trump has repeatedly suggested he might not accept an election result that goes against him, claiming that any such defeat would be the result of fraud. Many Democrats might at the very least be deeply suspicious of any close win for Trump. Add in the reality that increased mail-in voting might mean that the results will remain unclear for a long time after election day, and there is the potential for a serious crisis over disputed election results. In an insightful recent LA Times op ed, Yale Law School Prof. Bruce Ackerman and Democratic Rep. Ro Khanna, describe the potential dangers, and propose a possible solution:

President Trump's claim that only "a rigged election" will yield a Democratic victory poses the risk of a constitutional crisis far beyond anything Americans witnessed in Bush vs. Gore, when the Supreme Court precipitously intervened to award the 2000 election to George W. Bush. Two decades later, the best way to confront the looming crisis is to enlist the Supreme Court in a very different fashion — by creating a special commission, headed by Chief Justice John G. Roberts Jr., to oversee the disposition of any disputed state election results….

After a presidential election, when Congress reconvenes early in January, the nation's 435 representatives and 100 senators are required to meet in the House chamber in a special joint session. The Constitution designates the sitting vice president to preside over the proceedings — in 2021, Mike Pence will be in the chair….

Precedents established by Thomas Jefferson in 1800 would permit Pence to invalidate a particular state's electoral returns on the grounds that the underlying vote-count was generated in an illegitimate fashion — that it was rigged.

Pence could refuse to allow the House or Senate to consider a state certificate that he found fraudulent and eliminate its electoral votes from the overall tally. That would reduce the number of electoral college votes required for a majority. If Pence used his prerogative in a partisan manner — for example, invalidating close results that favor Biden, but accepting those that favor Trump — he could mathematically upend the overall election.

If that seemed likely to happen, House Speaker Nancy Pelosi could play some legal and political hardball of her own. She could refuse to hand over the gavel to the vice president when Pence arrived in the House chamber to call the special January joint session into existence. That would make it impossible for Biden or Trump to claim the authority to be sworn in as president, and according to the Presidential Succession Act of 1947… it is the speaker who is third in line if neither the president nor the vice president can serve. Pelosi could forestall a handoff of the presidency to Trump by becoming "acting" president herself.

Either of these courses of action — Pence interfering with the election results, Pelosi refusing to allow Pence to call the joint session — would provoke political chaos, street demonstrations and even violence as the nation approached "noon on the 20th day of January" — the moment when the Constitution explicitly states that term of the "current President and Vice-President shall end…"

Congress would be wise to act now to prevent the passions of January from spinning out of control.

The disputed presidential election of 1876 serves as a crucial precedent. It pitted Democrat Samuel Tilden against Republican Rutherford B. Hayes and involved contested election returns from several southern states. Rather than relying on the usual joint session, Congress delegated the job of resolving the controversies to a special commission — five Supreme Court justices, five senators and five House members….

For the 2020 election. Congress should immediately create a commission similar to the Tilden-Hayes panel. In this case, the right makeup would be five Supreme Court justices — two liberals and two conservatives, with Roberts as chairman. If the commission began monitoring the electoral process now, it could make fact-sensitive judgments on the accuracy of state vote counts come January. Pelosi and Pence should make clear their intention to abide by the decisions reached by the commission.

I am not sure Pence and Pelosi could really get away with taking the sorts of actions Ackerman and Khanna describe. But the risk of this and other kinds of skullduggery is real, as is the danger of crisis and civil unrest.

There is considerable merit to Ackerman and Khanna's proposal for mitigating the danger. In particular, there is value to committing to an impartial dispute-resolution mechanism before the details of any election controversy become known. If there is broad, advance bipartisan agreement in Congress to abide by the decisions of the electoral commission, that would make it much more difficult for Trump—or anyone else—to refuse to accept the results. Thus, the risks of a dangerous constitutional crisis might be averted.

While the general idea here strikes me as sound, there may be some devils lurking in the details. Here are some that occur to me:

Appointing Chief Justice Roberts as chair may not be wise, given that many conservatives think he has "betrayed" them in various ways, a sentiment deepened by several votes he cast in ideologically charged cases this past term. Many on both right and left also regard him as politically shifty, and therefore might view any decision where he cast the pivotal vote with suspicion.

If the Electoral Commission must have a Supreme Court justice as chair, I tentatively propose that it be co-chaired by justices Elena Kagan and Neil Gorsuch. Both have strong support from their respective sides of the political spectrum, but also at least some substantial credibility on the "other" side.

I am also wary of a Commission where all the members are Supreme Court justices. If the justices on the Commission reach a decision that is seen as wrong or illegitimate by a large part of the country, that could further politicize the Court and make it vulnerable to attacks on judicial independence. The Court's growing popularity has given it some protection against court-packing and other possible schemes to weaken judicial review. But that popularity might erode if a commission composed exclusively of SCOTUS justices decides a disputed presidential election in the present atmosphere of severe polarization (which, as Ackerman and Khanna note, is far worse than that which existed at the time the Court decided Bush v. Gore in 2000). That said, the Court's public image has bounced back from many previous controversies that critics claimed would erode its legitimacy (including Bush v. Gore itself), and perhaps the same thing would happen here.

Nonetheless, other things equal, I would prefer a commission that included at least some non-SCOTUS members. As Ackerman and Khanna note, the 1876 Commission include ten members of Congress alongside five Supreme Court justices. I am not sure including members of Congress would be a good idea this time around (the vast majority of them are highly partisan figures). But perhaps it might be possible to find other non-SCOTUS members with greater credibility across the political spectrum.

Finally, it's worth noting that the 1876 election far from an entirely positive precedent. The Commission ended up splitting along partisan lines, with the eight Republicans all voting to award the 20 disputed electoral votes to GOP candidate Rutherford B. Hayes, while the seven Democrats all concluded they should go to Democratic nominee James Tilden. As a result, many Democrats never really accepted the idea that Hayes' victory was legitimate, and they continued to denounce him as "Rutherfraud" B. Hayes.

The conventional wisdom about 1876 holds that such acceptance as Hayes did achieve was in large part bought at the price of the "Compromise of 1877," in which Republicans agreed to ease up on pressuring the southern states to protect the civil and voting rights of African-Americans, in exchange for Democratic acquiescence to Hayes' win. Ackerman has questioned the standard account of 1877 in  his academic work, and perhaps he is right. Still, using 1876 as a model is not without risk.

At the same time, it may be that a commission created in advance will have more credibility than one established on an ad hoc basis after a crisis has already begun. In addition, an 1876-style split along partisan lines might be avoided by requiring the commission to reach decisions based on a supermajority. For example, if there are five members, perhaps 4 of 5 will need to agree to make any binding decision.

Despite these possible reservations, I think the commission idea is a promising one, and at the very least deserves serious consideration.

 

NEXT: The Myth of Europe's Migrant Crisis

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  1. “when the Supreme Court precipitously intervened to award the 2000 election to George W. Bush.”

    Sigh. They intervened to dismiss Gore’s legal challenge to the results.

    1. Some butt hurts never heal.

    2. The Florida Supreme Court issued an order for the ballots to be counted.

      The U.S. Supreme Court overruled that order to stop the ballots from being counted. For reasons including that it might interfere with George W. Bush’s “right to rule.”

      You don’t steal an election by demanding or ordering the ballots to be counted. You steal an election by stopping the ballots from being counted when the interim count is in your favor. And the majority in that decision was very clear about who they wanted to win.

      Clear now? Sigh.

      1. Sigh. You steal an election by demanding that the ballots be counted over and over again until the count is in your favor. Even if one of the re-counts had favored Gore, there still would have been more counts favoring Bush.

        “The Florida Supreme Court issued an order…”
        “…the Supreme Court precipitously intervened…”

        The distinction is noted.

        1. This is from the wikipedia article:

          …Everybody had thought that the chads were where all the bad ballots were, but it turned out that the ones that were the most decisive were write-in ballots where people would check Gore and write Gore in, and the machine kicked those out. There were 175,000 votes overall that were so-called “spoiled ballots.” About two-thirds of the spoiled ballots were over-votes; many or most of them would have been write-in over-votes, where people had punched and written in a candidate’s name. And nobody looked at this, not even the Florida Supreme Court in the last decision it made requiring a statewide recount. Nobody had thought about it except Judge Terry Lewis, who was overseeing the statewide recount when it was halted by the U.S. Supreme Court. The write-in over-votes have really not gotten much attention. Those votes are not ambiguous. When you see Gore picked and then Gore written in, there’s not a question in your mind who this person was voting for. When you go through those, they’re unambiguous: Bush got some of those votes, but they were overwhelmingly for Gore. For example, in an analysis of the 2.7 million votes that had been cast in Florida’s eight largest counties, The Washington Post found that Gore’s name was punched on 46,000 of the over-vote ballots it, [sic] while Bush’s name was marked on only 17,000… –Lance deHaven-Smith

          In other words if the over-votes had been counted, Gore would have won by well over 20,000. Nobody, but strictly nobody other than a nakedly Republican partisan can look at these facts and conclude that Gore was trying to claim votes that weren’t his to claim.

          You can argue that the the issue was never brought up before either court and that does seem to be the case, but if the Supreme Court had not stopped the ballot counting preemptively there is little question that the issue would have been brought up. How it would have been decided neither you or I cannot predict.

          So back on topic I think a congressional election commission is a good idea.

          1. ” Nobody, but strictly nobody other than a nakedly Republican partisan can look at these facts and conclude that Gore was trying to claim votes that weren’t his to claim.”

            At what point did he ask for these ballots to be counted? Answer: At no point. So they’re precisely irrelevant to what he was trying to do.

            What he actually did was wait until the end of the period during which candidates could request a recount, and then, at the last moment, when Bush would have no time to respond in kind, requested a recount in a short list of counties.

            If he was trying to find the real winner, he could have asked for a state-wide recount.

            Now, for a variety of reasons, good AND bad, hand recounts tend to produce more recorded votes than machine counts. The counts for all the candidates tend to go up, in proportion to the original count.

            So, by requesting recounts only in some counties where he had done especially well, he could anticipate that his vote total would increase more than Bush’s. If it increased enough, he’d have ended up with the majority state-wide, even if a state-wide recount would have shown Bush the winner.

            So, yes, it was an attempt to steal the election even if Bush had legitimately gotten more votes. And the fact that, if the ballots state-wide had been recounted in a way nobody proposed at the time, Gore would have ended up ahead, doesn’t change what he was trying to do.

          2. “wikipedia article”

            On the 2000 election? LOL

            wikipedia is useful for a lot of things but not these kind of hot recent events

            Your excerpt is filled with highly contested statements.

            1. Wikipedia still claims the “Southern Strategy” is real thing even though the election histories for southern states on their very site disprove this stupid liberal trope.

              Wikipedia is trash.

          3. If the rule before the election says a double vote (write in the same name as you punched) does not count, even if it is the same name, that’s that.

            To change the counting rules after the election to make your guy win is core election stealing. Just like changing the rules of what counts as a hanging chad based on who you want to win.

            And I’m glad someone noted above recounting Gore-heavy counties only, when recounts tend to find more votes, thus favores Gore’s statewide total. I thought this at the time and was shocked it was almost missed.

            1. It was commented on at the time, I believe I recall National Review bringing it up first, explaining exactly why Gore had done it that way. But it’s true that most of the media outlets kept mum about it.

              Even in 2000 the media were biased. Just not as much as today.

    3. Yes. That was a “constitutional crisis” that was far worse than the vote count in Illinois in the 1960 Presidential election.

  2. Or. . . Trump and Pence could act like adults.

    1. So – not going to happen.

      1. Actually, I’d expect Pence to act like an adult. Not entirely sure about Trump, but Trump doesn’t actually have a role in this beyond deciding whether to challenge the results if they go against him.

        Which he’d be perfectly entitled to do, as I’m sure Gore would assure you.

        1. What is there about Pence that leads you to conclude he’s not a complete Trump toady?

          1. The fact that he’s the one whose been planting all these #Resistance members in Trump’s inner circle.

      2. It would be more likely than Biden and Harris acting like adults.

        1. Oh bullshit.

          Trump could never act like an adult.

          Pence might act like a particularly dim-witted one occasionally.

    2. “Trump and Pence could act like adults.”

      Pelosi can tear up something or flip on her sunglasses and you can “slay qween” about her.

      Pelosi is a whiny petulant child, just like Trump.

  3. “She could refuse to hand over the gavel to the vice president when Pence arrived in the House chamber to call the special January joint session into existence.”

    He can bring his own gavel.

    1. Lol. Yeah, that was a strange thing to say. I haven’t seen anything in the Constitution that requires anything to happen with the gavel. The president has to swear an oath, and noon on January 20th has to arrive, and that’s it.

      1. There’s nothing literally about a gavel, but there’s definitely more to it than the President showing up on January 20th:

        “The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.”

        That procedure is then elaborated on in Title 3 of the US Code.

        1. My point is that nothing says the speaker has to gavel it in and then give to VP. Constitution and statutes say VP presides. He just walks in and starts to preside, she has nothing to do with it if push comes to shove.

          1. Now, don’t go ruining the narrative with a bunch of irrelevant laws and stuff.

          2. Yeah, but that’s just the Constitution. If they were following the Constitution they wouldn’t be conducting business without a quorum, either. You want to bet Pelosi wouldn’t tell her caucus to just walk out on him? Or have the Sgt at arms refuse him entry?

          3. Nor does it have to be in the house chamber….

            1. No, but it has to be in their presence, so if they refuse to attend…

              1. Does it require (and define) a quorum? If the reps dhow up, is that enough?

          4. Well, good thing I was responding to TwelveInchPianist and not to you.

            I agree that it’s clear the VP presides, but as Brett notes below it does seem that the House has to go along with the procedure. In fact, each house of Congress conducts an independent review under 3 USC 15. Someone more familiar with the details would have to explain how that’s supposed to work at the same time as the joint session, but it seems like there’s some independent autonomy for Congress.

            Read strictly, I don’t really think there’s a role for the President of the Senate to arbitrarily decide to ignore certain votes, either, so I think the scenario for interference by Pence isn’t particularly more credible than the one by Pelosi. Despite that, I tend to agree that having an agreed-upon-in-advance commission to deal with disputes would probably be a good idea (if unlikely to happen).

            1. Read strictly, there’s also no role for any driver to drive above the legal speed limit. Nor is there any role for anybody to ever commit a crime.

              The question, here as there, is what happens if the relevant actors choose not to read strictly, but instead simply do what they want. If we were confident they would read strictly, we wouldn’t be here, would we?

              What consequence might there be? That’s the only relevant question here.

              What happens if the Vice President declares certain questionable ballots tainted and refuses to count them? Could the House override him? Could the federal courts intervene? What would happen.

              What the constitution requires people acting on their own honor to do is simply not the concern here. The niceties of the honor code, read strictly, are pretty much irrelevant if one suspects one may be dealing with professional cheaters.

  4. No, but the deliberate sabotage of election mechanics by Democrats needs to be stopped. But it won’t and so disaster is likely.

    1. Welcome, visitor from QAnon!

      1. ML used to be a partisan here, but not a whore. Trump’s impact on ML (and those like ML) has not been a positive one, alas.

        1. I don’t know that he’s whore.

          Are you sure he’s getting paid?

          1. Many prostitutes, who know what they’re doing and are not bigots, do not deserve the slur of being described as resembling M L (or the rest of the bigoted, Trump-fellating sycophants this blog has attracted).

            1. I had the vice assignment in the Valley for awhile. Did you know that many pros won’t date black men, Arthur? They want to avoid getting ripped off (what you call ‘racism’).

            2. Is it possible for you to comment on any story without attempting to demean Trump supporters? This is a rhetorical question, as I already know the answer — and so does every other reader.

              1. To be fair to the Rev not every post demeans Trump supporters, some of them demean EV over the aparent deletion of one of his profound utterances.

  5. What Congress actually needs to do is delay the election by a week or two, without moving back the various mail ballot deadlines. May be the only way to avert the deliberately planned debacle.

    1. But Trump already goaded the Democrats into declaring that delaying the election was absolutely beyond the pale.

      1. “Trump goaded.”

        Are you claiming he pulled some kind of brilliant strategic move? Said your daily prayer to Trump yet?

        1. He got the Democrats on record that you can’t delay the election, didn’t he?

          1. “He got?”

            Did he – excuse me, He – also get the sun to rise this morning?

          2. Getting the Democrats on record is rather overrated.

            Several Democrat Senators are on record as saying they won’t countenance getting rid of the legislative filibuster. Value ? Not even a spit of warm spit never mind a bucket.

            1. Getting politicians on record is rather overrated.

              Are you claiming Republicans stick to their word?

    2. “Deliberately planned” by whom? I just heard the Secretary of State for Ohio talking about how Ohioans should be confident about their vote being counted regardless of whether they vote in person or by mail. Is he trying to deliberately sabotage the election?

      1. Well, you’ve clearly established that, if he is, he isn’t going around telling everybody that’s what he’s doing. Why you think the lack of a public confession is probative, I don’t know.

        1. Woosh.

          Let me rephrase: if there is some conspiracy to destroy the election through the use of mail-in balloting by Democrats, why are so many Republican election officials going along with the scheme?

          1. I wondered that, too. The meme floating around Republican radioland was the Democrats were pushing mail-in so strongly so as to overwhelm not just the post office, but district counting, with capacity for 15% mail in, not 80%. This was, in turn to make sufficient states fail to meet the certification deadline, so it is thrown into the House, where Nancy dutifully appoints Biden.

            So Trump causes more mail problems to help her out? Have at it.

            1. Do you recall which Republicans with faces for radio explained it that way (mass mail in voting will cause too many states to fail to count in time, throwing the election to the House)?

              Because not only would it not work even if it had the effects on the state as described, but I’ve heard others making other arguments. The reason for failure of course is that a presidential election in the house isn’t by Representatives, but by States, and 27 State delegations are Republican-majority so when voting by state the republicans control the house (this itself because of the different ways each party gerrymander, and that republicans had a slight lead in more purple states – again back to the gerrymandering).

              But I haven’t even heard the capacity argument. Instead what I’ve heard are:

              1) if every mailbox has a ballot on the same day it’s easy to steal ballots – if you steal them from an area that votes differently than you it simultaneously disenfranchises your opponents and gives you lots of free votes that are impossible to catch – this doesn’t work with absentee ballots because a) they’re too few and b) voters are expecting them.

              2) it’s easy to correct votes after the election – as some states (a Nevada?) are planning to count ballots received and “mailed” after Election Day, so long as they weren’t postmarked after Election Day so to cheat you just have to deliver “correct” ballots directly to the election office to bypass the postal service.

              3) Rejected ballots and direct fraud are much more common with mass mail in ballots, as seen in Patterson NJ, or NJ primaries where several times the 2016 rate of ballots were rejected.

              Whether these are good reasons or not is a separate item, but it’s what I’ve heard from the right over the past few months.

            2. The version of it I’ve heard is that they’re doing it for multiple reasons:

              1) To get as many Biden votes “in the can” before he melts down as possible. Ideally he should already have won in many states before the first debate.

              2) To make it look reasonable that Trump might win on election day, and then lose a week later as more and more votes get counted. They don’t want people to find that suspicious.

              3) To turn the election into such a dumpster fire that even if Trump legitimately wins, they’ll be able to spin it as him having stolen the election and not get laughed out of the room. If the late counted mail in ballots aren’t enough to turn it around, they just claim he had the post office “lose” Biden’s winning margin. I guess that’s why they don’t trumpet the fact that the Postal union endorsed Biden. In reality, this is why Republicans are being urged to vote in person, out of the fear the post office will selectively “lose” mail in ballots from heavily Republican areas!

              1. #1 doesn’t make any sense. There’s no way to get enough votes in by September 29th, considering that many key states won’t send out ballots until October.

                For #2, it makes sense that we’d want people to understand that because it’s highly possible that races won’t be resolved on election night and has nothing to do with election officials being sneaky. This isn’t just a feature of 2020: the Sinema/McSally Senate race in Arizona or the Love/McAdams Congressional race in Utah in 2018 are good examples of races administered by Republican Secretaries of State not being decided until many days after the election.

                #3 is just pure projection–the most prominent and vocal person talking about the election being rigged/illegitimate is Trump.

                Regardless, none of the above answers my original question to ML: if this is a supposed Democratic attempt to mess up the election, why are Republican Secretaries of State almost universally going along with it?

            3. Nancy CAN’T appoint Biden — it is 50 votes — with CA just getting one. And Wyoming getting one.

  6. Isn’t there an Electoral Count Act for disputed elections?

  7. Regardless of the merits of appointing a commission ahead of time, this proposal completely ignores the political reality. Establishing such a commission would require congressional Republicans and Democrats to agree that it might be necessary. That isn’t going to happen.

  8. It’s almost funny how Democrats and never Trumpers keep accusing Trump of refusing to accept the results when Hillary and the Democrats were the ones to do that last time.

    1. It’s hilarious how you rave about something that didn’t happen. Are you going to run out that selective quote from Clinton that someone here tried to sneak by a while ago.

      And by the way, it’s Trump who has repeatedly declared that it is impossible for the Democrats to win except through fraud.

      1. Hillary Clinton:

        “Trump knows he’s an illegitimate President.”

        Facts is facts, folks.

        1. Trump ‘knows he’s an illegitimate president’ as she backs impeachment inquiry.

          Don’t be disingenuous.

          1. Don’t be dishonest.

            “He knows that he’s an illegitimate president… I know that he knows that this [the election] wasn’t on the level… I don’t know if we’ll ever know everything that happened…but history will sort it all out.”

            She’s talking about the election. Suck it up and admit that you’re wrong.

            1. PAULEY: Your name doesn’t come up much on any campaign except for Donald Trump’s. “Lock her up” is still a big popular line.

              CLINTON: I believe he knows he’s an illegitimate president. He knows. He knows that there were a bunch of different reasons why the election turned out the way it did and I take responsibility for those parts of it I should.

              But Jane, it’s like applying for a job and getting 66 million of letters of recommendation and losing to a corrupt human tornado. And so, I know that he knows that this wasn’t on the level. I don’t know if we’ll ever know everything that happened but clearly we know a lot and are learning more every day and history will probably sort it all out.

              So, of course he’s obsessed with me and I believe that it’s a guilty conscience in so much as he has a conscience.

              Not quite the slam dunk I thought, but not your narrative either. And you do like your carefully curated quotes.

              1. It’s exactly like he described it Gaslightro.

              2. “but not your narrative either.”

                My narrative is that she claimed that the election results were illegitimate.

                1. I bitterly regret that someone gave him a Word of Day Calander with “narrative” on it.

                  I wished he would turn the day at least.

              3. But Jane, it’s like applying for a job and getting 66 million of letters of recommendation and losing to a corrupt human tornado

                Nice.

                To be fair, though, let’s read a random letter of recommendation. “Well, you only have two choices, and she isn’t the human tornado.”

                Ooooh, dear…

        2. You or someone else has tried that lie before. Last time you claimed it was about vote fraud.

          I notice you’re afraid to provide the link this time, lest someone follow it and read the whole story.

          1. “I notice you’re afraid to provide the link this time, lest someone follow it and read the whole story.”

            ?? Link’s right there. She claimed that the election was illegitimate. You guys sure have a tough time with facts. Somebody told you that facts are racist, I guess.

            1. Facts are a social construct of the white cis-hetero-normative colonial hegemony that disregard indigenous non-factual truths.

    2. What a stupid lie. The reason you did not see armed insurrection or extended court battles up to the Sup. Ct is because, Dems *did* accept the result. You can think that Trump colluded with Russia (or, at least, did his level best to collude), and you can think that Republicans immorally suppressed the votes, and you can think that James Comey gift-wrapped the election when he publicly issued his BS investigation of Hillary while deliberately hiding the actual investigation of Trump from the American voters . . . and still accept that Trump was president. And. That’s. What. Actually. Happened.

      Harvey. Man, you are an idiot.

      1. “The reason you did not see armed insurrection or extended court battles up to the Sup. Ct is because, Dems *did* accept the result.”

        Just memory holed the riots at his inauguration, the attempts to get electors to be unfaithful, the crazy talk of removing him using the 25th amendment, the effort to impeach him on the most absurd basis imaginable? The statements coming out of the House that they’ll impeach him again if he’s reelected?

        Democrats didn’t go to war, but they certainly didn’t accept that he was legitimately President.

        1. Just memory holed the riots at his inauguration

          By who? Organized by who? Pelosi? Schumer? Clinton?

          You’re deranged. Like Trump.

          As for the 25th, yeah some called for that. But like impeachment and conviction, this is an explicit Constitutionally specified method of removing a President. It doesn’t suggest that the election was illegitimate.

          Oh. And the effort to impeach him, on quite a solid basis, succeeded.

          That his toadies in the Senate refused to hear relevant evidence and rushed to acquit so as not to offend Dear Leader doesn’t mean he did nothing wrong.

          1. “…the effort to impeach him, on quite a solid basis….”

            Ha, ha, ha! Solid basis! Perhaps you forget that he was acquitted?

            1. You do know the difference between an impeachment and the following trial, right? Anyone who says that the trial resulting in conviction is a liar or an idiot. Probably both. Anyone who says that Trump was not impeached (is that the same as being acquitted in the House on the impeachment action??) is a liar or an idiot. Probably both.

              OJ Simpson was acquitted at his criminal trial. I guess you’re making the argument that (1) This is proof that OJ did not, in fact, kill 2 people, and ALSO that (2) This is proof that the prosecution’s decision to arrest OJ and charge him was wrong-headed, corrupt, or something else nefarious.

              Just like a conservative, to be anti-law enforcement, pro-murderer, and anti-justice.

              Or, are you actually conceding the point that an acquittal often has little or nothing to do with the action wrongdoing of the accused? [To make the comparison to the OJ trial more accurate, you have to say that 98% of Republicans sitting on the jury refused to allow the prosecution to present any evidence that had not been presented to the grand jury, regardless of its obvious relevance.]

              1. action = actual
                resulting = resulted

                frickin’ lack of Edit button 🙁

          2. “Oh. And the effort to impeach him, on quite a solid basis, succeeded.”

            So did the effort to prosecute OJ Simpson.

            1. Impeachment is akin to indictment, and the effort to obtain an indictment (or whatever pretrial hurdle California provides for) against OJ was indeed successful.

              1. The attempt to prosecute OJ Simpson was successful. He was indeed prosecuted.

                1. I agree that there is a strong equivalence between Trump and OJ Simpson. Both where indicted/impeached on quite strong evidence, but neither was convicted because the defense managed to make a bunch of noise to distract from that evidence.

                  1. Well, in the OJ case the lead detective lied under oath on the stand about saying “nigger” and one of the prosecutors did something really stupid that happened to rhyme with “acquit”. Among many other mistakes by the state.

                    How you present the evidence matters.

                  2. I don’t think that analogy holds. The OJ defense may well have bamboozled the jury, but the Trump defense didn’t trick the senate majority; they just didn’t care.

        2. Following the rules is not illegitimate, Brett.

          1. Ah, but Professor Somin advocates that we give serious thought to not following the established rules we have. We should leave well enough alone. The Constitution lays out how this is supposed to proceed. It has worked for a long time. I am loathe to screw with the system we have because I don’t believe for a moment the current crop of academics and thinkers are anywhere near the equal of the Founders.

            Now…The mail in ballot thing bears watching. In the People’s Republic of NJ, we do not have a good track record with mail in balloting. A lot of votes get thrown out. I mean, a lot.

            Me personally, I am showing up in person to vote. That is, unless Phailing Phil Murphy decides that voting booths present too much risk to the public to use and prohibits them. It would not surprise me if he tried that. And why not, the man has trampled all over our individual liberties and gotten away with it. What is one more?

            1. Following procedures to change the rules is also not legitimate.

              The question is what are the rules. See: Judicial nominations.

  9. You know, the only reason this might be a close election is because of the electoral college. Without it, we’d probably have conclusive results an hour after the last poll closes. Which is reason number 872 to get rid of the electoral college. There would have been no 2000 election fiasco without it either.

    1. How many cities and counties would the GOP demand recounts in if there was no EC and Gore tried to steal the election?

      1. Gore isn’t on the ballot this year so I assume you’re talking about 2000. Gore won the popular vote by a half million votes, which is enough of a margin that any claim the popular vote margin was stolen would have been implausible. Certainly there could have been no plausible claim that Hillary’s 3 million vote margin was stolen. And since the popular vote would have been counted nationwide, if a particular city or county was close a recount wouldn’t have mattered to the outcome, so you’d have had fewer requests for recounts. Unless you had lots and lots of cities with close results all breaking the same way, which seems unlikely.

        Now, if you actually are concerned about stolen elections, then you should join me in urging an end to the EC because it makes it easier to steal an election. In 2016, stealing an election based on the popular vote would have required stealing 3 million votes to change the outcome. However, with the electoral college, you only need to steal 80,000 votes across three states to change the outcome. Which of those would be easier to pull off?

        1. When all was said and done, yes … but I was up all election night and the raw popular vote counts were almost even. As they were for many days afterward. The GOP would be immediately start harvesting votes in places that they control — though, since fraud as usually been a big city Democrat thing, I ain’t giving and DAMN INCH.

          1. I went to bed about midnight, at which time Gore had a slight lead. The point is, though, that with popular votes it’s harder to steal a national election than it is to steal multiple state elections because the quantity of votes involves is so much larger. Even on those occasions when it takes awhile to count everything, usually you’ll end up with a margin that’s large enough that fraud isn’t really plausible.

            As for your claim that fraud has usually been a Democrat thing, you’re funny. To the extent that Democrats do it, it’s more than made up for by Republican voter suppression.

            1. You mean DEMOCRAT suppression, like poll taxes and soapbox bubble counts?

              If you are talking about voter ID and such, I have seen NO proof and in fact seem to remember voting percentages rising among black voters. Nope — political machines, union thuggery and such are Democrat inventions.

            2. You know, it’s interesting that you have to go back decades for your examples of poll taxes and soapbox bubble counts. Anything recent you care to talk about?

    2. You can’t really say that, because if the popular vote mattered, the candidates would have campaigned differently, and the voters would have responded differently.

      Really, you just can’t tell. But the stupidest thing is to just assume the popular vote would have been the same.

      1. This is an absolutely fair point. And the one thing we know is that, in a true popular vote, the results would NEVER be the same. Candidates would have campaigned differently, and of course more or fewer or different people would have cast votes.

        I think it add to the legitimacy of the “nationwide vote” argument that we do NOT, in fact, know if Democrats would end up benefiting if we moved to this system. I think a lot of people (including Republicans like me) would like to do away with the electoral college for entirely non-partisan reasons. I can certainly see, and acknowledge, good-faith reasons to maintain the electoral college. Why are so many here simply incapable of assuming good faith reasons for the “nationwide” side’s arguments? (I am absolutely Not including you in that group Brett…merely making an observation about some of your fellow conservatives and partisan Republicans at this website.)

        1. I wouldn’t argue that there are no legitimate reasons to advocate a switch to a national popular vote. (Ideally some form of instant runoff.)

          Indeed, one argument for the popular vote is that it removes the distorting effect of all those illegal aliens counting for apportionment. Apportionment doesn’t mean squat if we switch to a popular vote.

          What I want to douse with cold water is the perennial claim that, “Look, the popular vote winner lost in the EC, that means if we had a popular vote system somebody else would be President!”. It doesn’t mean that at all. There’s an excellent chance that, if we’d had a popular vote system in place in 2016, Trump would still have won. He was just better at this game than Hillary, he hadn’t just won, he’d done it while being outspent 2-1. And he had plenty of his own money to spend, he only spent the amount he needed to win.

          What I’d really like to see is EC votes distributed in the fashion Maine and Nebraska currently use: Two EC votes to the state-wide popular vote winner, and one for the winner of in each Congressional district.

          Spoiler: As long as states get the number of EC votes they do, EVERY allocation method by state would have put Trump in the White House. A couple of them would have done the trick for Romney, too. That’s the disadvantage Democrats get from getting their entire PV advantage from totally dominating California.

          1. one for the winner of in each Congressional district.

            This only works if you get rid of gerrymandering. Otherwise it’s even worse than winner-take-all.

            1. Setting aside the usual Democratic claim that anything short of gerrymandering in favor of Democrats constitutes “gerrymandering”, no.

              The actual outcome was 306-232. If every state was winner take all, it would have been 305-233.

              The Congressional district proposal I like would have been 290-248.

              Guess you didn’t bother following the link. Trump actually won the EC in every single allocation method proposed. A consequence of all of Hillary’s popular vote lead and then some coming from just one state. Losing most of the country and then utterly dominating California may look good in terms of national popular vote, but it’s exactly the sort of regional dominance the EC was designed to disadvantage.

      2. I doubt that campaigning differently would have made a difference to the tune of 3 million votes on 2016 or a half million in 2000. Maybe but I’d bet against it.

    3. The EC tamps down the incentive to cheat in the popular vote at a state level. Without it, states would have a temptation to allow rampant cheating in the popular vote to increase the chances of a favored candidate.

      You’d have “Philadelphia” style turnouts of more than 100% of registered voters.

      1. Well, it tamps that incentive down in states that aren’t swing states. There isn’t really a lot of reason to manufacture (Presidential) votes in California, for instance.

        In swing states? Sure, there’s still reason to. OTOH, it’s likely harder to pull off in states that aren’t firmly under the control of one party.

        1. Exactly, and in a single-party state government like California, how hard is the Secretary of State and the Attorney General going to investigate or prosecute voter fraud if it’s in favor of the “right” candidate? Are you ready for California to report election results with 75 million votes cast? Imagine the race to the bottom as states compete to see who can cheat the most.

          1. If California reported 75 million votes the investigation would not be conducted by state officials. It would be conducted by career prosecutors at the US Justice Department.

            1. Yeah, that’s a silly exaggeration. But there’s a wide range between “So obviously crooked the DOJ steps in” and “Honest”.

    4. There are a couple of potentially major problems with your thesis that getting rid of the electoral college will make our presidential election harder to cheat in, and more predictable.

      First is that in the current model in order to have any benefit at all a candidate has to pick a state that they’ll both a) lose and b) almost win. This is so that when they cheat (add more votes to themselves, remove their opponents, suppress votes, buy them, what have you) they actually change the results – there’s no benefit to cheating at a game you’re going to win anyway (setting aside the challenge in knowing if you’re going to win in advance….). You also have to do it in such a place where it’s both economical and logistically practical – having more votes for you than there are living people in a city is a really bad sign.

      Both of these are reversed in a national popular vote model, where instead of being constraints they’re actually benefits. Since a vote anywhere counts everywhere it’s always advantageous to take a few extra votes everywhere you can. To go back to some of the concerns with voting machines during the Bush administration, if you had every machine programmed to add one additional vote for you for each 100 votes actually cast it would be essentially undetectable in any location, but a 1% margin is often enough to change the outcome. Increase that to 3 or 5% and it’s still almost impossible to detect (since all of the statistics will still be within normal boundaries), but you’ve given yourself an almost insurmountable advantage.

      Separately, removing the electoral college will likely yield very different voting patterns. As it is now in many jurisdictions there’s a strong disincentive against voting – if you’re a Green Party member in Wyoming, or a Libertarian in New York not only is your vote worthless (because a terrible candidate from your perspective will assuredly win), but you can’t even send a signal with your vote – there are no candidates you don’t find abhorrent on the ballot at all (obviously this varies). How many voters are effectively disenfranchised in Texas, California, New York, and Illinois because of this? How many new voters will arise when they learn that for the first time in their lives their vote might actually mean something? I find this an argument in favor of national voting, but especially for the first few cycles it most definitely wont be clear what will happen.

  10. No mention of the Democrat wargames on the election? Where every outcome is some sort of constitutional crisis except a Biden landslide?

    Provoked by the Democrats of course, but allegedly the fault of Trump.

    Just like all the current political violence we see, conducted by Biden Voters, blamed on Trump Voters.

  11. The Democrats throw a violent terror tantrum when they don’t get their way? Shocking!

  12. Thats why there should be a nationwide mandate that all votes be in by Election Day. Be they in person or mail-in.

    1. Let’s compromise – they should all be in by election day, but they need to be marked for the correct candidates.

    2. We need to go back to have an Election Day and not an Election Season.

      Two months of voting is an extra 59 days of cheating opportunities.

      1. I’d agree with that: Pull out the stops to make it possible for everyone to vote on election day, and then require that everyone do exactly that.

        1. National Holliday. Busses/mass transit are rerouted for polling places and are free. Probably a couple more additions, but easy enough to do, if we think that people who have personally placed a low value on voting should be encouraged to vote.

          1. My idea is that all votes would be cast in-person at polling places on Election Day but there would be no requirement that the voter go to a particular polling place. You could go to any polling place. This would probably require a personal voting token of some kind. I think a small state should try this out.

  13. If Trump wins, Democrats are not going to accept that win as legitimate, and no commission is going to change that. They never really accepted his victory in 2016 as legitimate, and they’ve spent the last 4 years priming their base to think that it’s simply impossible for him to win ‘again’ without having rigged the election.

    It’s really totally hopeless at this point: They simply do not intend to accept anything but their own candidate winning. And I do mean “intend”, it’s not simple incapacity, the institutional party has, as far as I can tell, simply decided that they don’t want people accepting Trump as legitimate if he really wins.

    1. Well considering that Democrats have already spent the summer rioting, burning and looting in cities that they already control – any more violence that they start because they refuse to accept the results of another election is just going to be anticlimactic at this point.

      1. “Well considering that Democrats have already spent the summer rioting, burning and looting in cities that they already control”

        Assuming that the rioters, burners and looters aren’t just opportunists from other parties.
        Why not pile onto the lie that all the wildfires are started by antifa, too? And maybe those black men allegedly dead in police custody are “crisis actors”?

    2. they’ve spent the last 4 years priming their base to think that it’s simply impossible for him to win ‘again’ without having rigged the election.

      Says the Least Self-Aware man on the Internet.

      Are you not aware that Trump has repeatedly claimed, recently, that a Democratic win would be illegitimate? I guess not.

      IOW, your god is doing exactly what you accuse the Democrats of.

    3. They never really accepted his victory in 2016 as legitimate

      Hell, they still haven’t accepted Bush’s win over Gore.

      1. Fun game. Y’all are still bellyaching over Bork.

        1. I’ve never complained about Bork losing. Nobody willing to call part of the Constitution an “inkblot” belongs in the judiciary, let alone on the Supreme court.

          Sure, the Democrats were trying to kill the nomination. The reason they succeeded is that plenty of Republicans wanted it killed, too.

    4. ” they’ve spent the last 4 years priming their base to think that it’s simply impossible for him to win ‘again’ without having rigged the election.”

      Maybe if Trump didn’t spend so much time talking about rigging the election, and trying to interfere in counting ballots, they wouldn’t be able to get the story to stick.

  14. No.
    Hell no.
    Just pass a quick law prohibiting any reporting or projecting or any other damn thing for one week after the elections, and then the counts will be completed. Call the winner, and let the lawsuits continue. (245 in progress already as of this AM)

    1. “Just pass a quick law” … I don’t think this is how congress works any longer.

      1. I mean, ‘prohibiting any reporting or projecting’ is also problematic.

        1. As if that’s ever stopped our legislature before….

          😉

  15. “Many Democrats might at the very least be deeply suspicious of any close win for Trump”

    How is this going to be different from the “Russian Collusion Hoax”?

    1. most likely this time, Trump won’t go on national TV and say “yeah, I totally would have cheated to win this election” before starting to refer to the “stolen election hoax”

  16. The presidency was given to the Dems in 1876 in exchange for ending Reconstruction. All of this was backroom, btw, totally apart from any (potentially) silly Congressional commission.

    What would the Dems give up today, in exchange for Trump?

    1. I think you mean “given up BY”.

      1. Oh, they already have a list — statehood for DC & PR, elimination of the EC, and a whole bunch more.

    2. “What would the Dems give up today, in exchange for Trump?”

      What have the Republicans given up so far, to keep Trump and his 47% approval rating?

  17. Well, soon the election will be over and we’ll either have a second Trump administration, or a Harris administration together with Joe Biden.

    1. Biden himself called it the Harris-Biden Administration.

    2. Clearly, you mean Joe Jill Biden. 🙂

    3. This is a full-on Trump talking point. Because he doesn’t know how to run against Biden.

      1. “This is a full-on Trump talking point.”

        Lol now that’s a conspiracy theory I hadn’t heard.

        1. “now that’s a conspiracy theory I hadn’t heard.”

          Conservatives get their “arguments” from AM radio broadcasts? This is not a recent development, It’s been happening since Reagan was still trying to President.

        1. “Both Biden and Harris have refered to the Harris Administration in the last couple days.”

          Perhaps they’re both sure they’ll manage to get three terms, and they’re already talking about 8 years from now…

      2. As Bob points out, if this is a Trump talking point, both Harris AND Biden have picked it up.

        1. If this is a Trump talking point, then someone on Fox News said it.

      3. Sarcastr0, I have to tell you. You should read Edith Wilson’s biography. Because that is the situation we are looking at here. You’re not electing Joe Biden, you’re electing Jill Biden until Team D says Joe is done.

        But this is going to get settled the old fashioned way. At the ballot box.

        1. I don’t buy the narrative that Biden is in any way impaired.

          1. “narrative”

            Learn a synonym.

            1. Sorry Bob, this place is full of narrativists.

            2. Strike “narrative”.
              Substitute “bullshit”.

              Works just fine with a synonym.

          2. Then why are he and Harris now calling it the “Harris-Biden administration? Quite the demotion, if he’s all there.

            1. 1) Not what Commenter was talking about.

              2) Pretty sure that was a slip of the tongue, Brett. But, since it fits your narrative…

              1. So, you’re saying they BOTH had identical slips of the tongue, and Biden had his while reading from a teleprompter?

                No, I think it was a trial balloon for when people more widely realize he’s not up to the job.

                1. I think you’re trying to distract from the fact that YOUR guy actually had to have a cognitive test administered to him, which he later said was “really hard” which it objectively is not.

                2. “I think it was a trial balloon for when people more widely realize he’s not up to the job.”

                  Given that there are still people willing to argue that Trump can do the job, which people are you talking about?

              2. “Pretty sure that was a slip of the tongue…”

                So… Biden and Harris’ tongues are slipping together?

      4. His plan for running against Biden involved trumpeting the Ukraine’s “investigation” of Hunter Biden. But that didn’t work out.

  18. “Should Congress Establish an Electoral Commission to Handle Disputes over the 2020 Presidential Election?”

    But then who would settle disputes over the Electoral commission?

  19. Nancy Pelosi would never have the gavel in the first place — in the presence of does not mean that the House is convened, or even its chamber.

    They could do it in a tent on the White House lawn.

    The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

    1. “They could do it in a tent on the White House lawn.”

      Why not downtown at the end of the parade with all the tanks?

  20. It doesn’t matter how objective and clearly factual the commission is. If their decision is for Biden, Trump and his followers will reject it. They have relied on fanciful claims in the past (“millions of fraudulent votes in California”, “widespread voter fraud”) and will continue to believe in fantasies, no matter how easily disproved.

    1. Now do Biden and his followers.

      1. Biden and his followers do not live in a fantasy world. Given the evidence, they will accept it, as would have either party candidate of the last 150 years.

        1. My side is rational, yours is crazy.

          Get some new material please.

          1. It might seem like old stuff to you, but I’ll keep saying the sun rises in the East.

          2. “My side is rational, yours is crazy.”

            This was at least partly true until your side went crazy.

  21. I’m not super worried. The GOP base has been threatening civil war since at least Clinton, and nothing has come of it. And they’re much older now.
    The Dems are so full of technocrats (including Biden) they wouldn’t dare upset the precious decorum.

    And both side is keeping the other on their toes. See, e.g. the Post Office debacle that Trump had to walk back (though he’s still trying!)

    I expect lots of angry Internet posting from Nov-Feb, but not much more.

    1. The Dems are so full of technocrats (including Biden) they wouldn’t dare upset the precious decorum.

      I know, right? Only a “fat” old” “full of shit” damn liar” “dog-faced pony soldier” would think that Biden doesn’t cling to decorum. Or maybe Corn Pop. He was a bad dude, you know.

      1. Decorum doesn’t always mean nice language. Consider context.

        1. Right, decorum doesn’t refer to language or behavior. It refers to whether or not you’re a Democrat.

          1. So Brett thinks decorum is an unadulterated good, and that only Dems have it.

            1. Well, at least if you’re to believe Democrats, anyway.

              1. Point is Brett, Wuz listing stuff Biden has said is doing a crap job of showing Biden or any of the Dems in the party are going to call for or participate in violence.

                1. The only thing we need for that is to point to Democratic cities with nightly rioting, and the local governments ordering the police to allow it.

                  Did you ever disown the rioters at Trump’s inauguration?

                  1. I didn’t realize he owned any imaginary rioters.

                  2. Will you shut up about that.

                    There were some people arrested, some were acquitted, and the others who had the charges dropped. It wasn’t a riot started by “the Democrats” to unseat Trump, much as you try to portray any misconduct anywhere by someone on the left as part of a giant conspiracy.

                    I don’t think you have a hope of understanding people who disagree with you, so long as you’re committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

                    Have I “disowned” it. No. I don’t approve of that kind of thing, but I feel no need to make a public statement every time some jackass makes trouble.

                  3. “Did you ever disown the rioters at Trump’s inauguration?”

                    More people rioted at Trump’s inauguration than showed up at Obama’s. It was the biggest and bestest riot ever seen! And also, it wasn’t raining…

                  4. “The only thing we need for that is to point to Democratic cities with nightly rioting, and the local governments ordering the police to allow it.”

                    After we discuss all 0 cases where that is true, what do we move on to? How having to wear a mask in public is too much of an infringement of individual liberty but being required to carry a fetus is a justifiable application of government power?

              2. Well, I don’t categorically believe Democrats, but I’m close to categorically disbelieving anything Donald Trump or one of his toadies says in public.

    2. “I’m not super worried. The GOP base has been threatening civil war since at least Clinton, and nothing has come of it.”

      The way they imagine it, their side has all the guns, so the fighting wouldn’t last very long. That’s the problem with making all your policy based on imagination rather than reality. “We’ll be greeted as liberators!” “They’ll be throwing daisies at our feet!” turns out once they got their leadership to bring them a real war, they lost interest in it.

  22. I’m worried about the ability of such a commission to deal with unfair practices arising from the administration of the election. For instance, suppose Florida goes for Trump by 100 votes but only because so few polling places were created in Miami and other cities?

  23. Anyone who thinks the Hayes-Tilden commission is some sort of model to follow for disputed elections must have missed a few hours of history class.

    1. Agree. And the historical story is fascinating. I was there for those history class hours. 😉

      1. I didn’t take that history class. I took a different one that started with the re-election(s) of Porfirio Diaz. It ended with the perpetual election victories of the institutional revolutionary party.

  24. Not sure this is a good idea at all, unless the commission’s powers are severely limited, and maybe not even then.

    It could easily make things worse. If the commission has a wide ranging power to investigate fraud and overturn state-reported results, I can see certain candidates deciding what the hell: file an automatic appeal on every single state they lost. Why not exhaust all avenues, even if you’re behind by 100 EVs?

    Then you’d have commentators spinning it like this: your vote doesn’t matter, the electoral college doesn’t matter, all that matters is these five unelected people. That’s not going to calm anybody down.

    Finally, we sometimes have rogue electors…a handful out of 538. Now imagine if one member on a commission of five goes rogue. For example, suppose one of them says “to hell with these ballots from the electoral college, I’m going rule in favor of the popular vote winner because that’s the right thing to do and you can’t stop me”? Or even more bald-faced, just says one candidate is unfit or ineligible to be president and therefore their votes don’t count.

    If it’s done at all, the commission should be strictly limited to cases where there are two sets of electoral votes submitted, and investigating which set was submitted by the proper authority according to state law. No recounting, no mulling over who would have “really” won the state if the election had been perfect.

    1. I think the idea is that you would choose commissioners who’ve given substantial indications they would not go rogue.

      1. I think whoever’s choosing commissioners is trying to pick them under the assumption that they’ll pick your party’s old white man to win.

  25. I seriously doubt Congress could come up with an “Electoral Commission to Handle Disputes” in the limited time available. Both sides will wrangle for so their candidate has the advantage. Nothing passed in the House can survive the Senate, nothing passed in the Senate can be reconciled with the House bill to make that commission. DOA!

    1. Even if both halves of Congress could agree on a plan, Trump isn’t signing it unless he sees a clear personal benefit. Double DOA!

  26. “Should Congress Establish an Electoral Commission to Handle Disputes over the 2020 Presidential Election?”

    Probably not. It would either place Donald Trump in charge of ensuring election fairness, or he’s not signing it.

    We’ll just have to wait until mail-in votes in Oregon and California are unfortunately lost in the wildfires.

  27. A new first: Scientific American, after 175 years in print without making any political endorsements, has endorsed one of the candidates this year. (Guess which one!)

    1. Its a German owned magazine.

      Foreign interference!

    2. They’ve all but been endorsing Democrats for some time, might as well just admit they’re partisan hacks.

      I stopped reading that rag when they got rid of the amateur scientist column, and there wasn’t any secret about their politics even then.

      1. With Republicans staking out a consistently anti-scientist position, it’s not a surprise that scientists and people who favor science would reject the party.

        Now you come along declaring, “YOU can’t break up with ME because I’M breaking with YOU!”

    3. Republicans have rejected science for so long that this was inevitable at some point.

      1. How many genders are there?

      2. Big news. Fresh off his stunningly accurate prediction that Coronavirus would go away by itself when the weather got hotter, President Trump is now predicting that global warming will just go away by itself. how did the actual scientists miss that little detail?

  28. Although Hayes’ election is hardly a reassuring precedent, a commission might not be a bad idea in these very troubled times. I also agree it would be a good idea to have members other than Supreme Court Justices.

    I am not sure about some of the specific recommendations. For example, although Justice Kagan has a well-deserved reputation for careful thought and good legal writing in academic legal circles, I’m not sure the average voter, Republican or Democrat, would distinguish her from the court’s other 3 liberal justices or regard her opinion as any more reliable or trustworthy.

    1. Similarly, I’m also not sure that Chief Justice Roberts’ reputation for impartiality is as tainted among the general public as it might be in the types of conservative legal circles that Professor Somin is familiar with.

      1. Roberts won’t be forgiven for his Obamacare flip.

        1. That bastard recognized reality. Thus, he is to be ejected from the Republican community forthwith!

  29. This is an awful, terrible, no good idea, no matter what angle you view it from. This is so bad it could only have been hatched by a Yale law professor.

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