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51 Loy. U. Chi. L.J. 309 (2019-2020)
Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management

handle is hein.journals/luclj51 and id is 337 raw text is: Preparing for a Disputed Presidential Election:
An Exercise in Election Risk Assessment
and Management
Edward B. Foley*
This Article considers the possibility that a major dispute over the
outcome of the 2020 presidential election could arise, even without foreign
interference or some other extraordinary event, but rather just from the
ordinary process of counting ballots. Building upon previous research on
the blue shift phenomenon, whereby adjustments in vote tallies during the
canvassing of returns tends to advantage Democratic candidates, it is easy
to imagine a dispute arising if this kind of blue shift were consequential
in the presidential race. Using examples from both Pennsylvania and
Arizona, two states susceptible to significant blue shifts in previous
elections, the article shows how the dispute could reach Congress, where it
potentially might metastasize into a full-fledged constitutional crisis. The
most frightening scenario is where the dispute remains unresolved on
January 20, 2021, the date for the inauguration of the new presidential term,
and the military is uncertain as to who is entitled to receive the nuclear codes
as commander-in-chief In order to avoid this risk, Congress should amend
the relevant statute, 3 U.S.C. § 15.
INTRODUCTION ............................................................................. 310
I. FROM NOVEMBER 3, 2020 THROUGH DECEMBER 14, 2020 ....... 315
A. What Could Happen..................................................... 315
B .  A nalysis  ........................................................................ 3 16
II. FROM JANUARY 6, 2021, THROUGH JANUARY 20,2021........... 321
A.  What Could Happen................................................  321
B. Analysis........................................................................323
1. The Electoral Count Act........................................ 329
III. JANUARY 6, 2021, THROUGH JANUARY 20, 2021 ................... 335
A.  What Could Happen................................................  335
B. Analysis: The Arizona Alternative ............................... 339
* Ebersold Chair in Constitutional Law and Director, Election Law @ Moritz, Ohio State
University Moritz College of Law. Many thanks to all who provided feedback on previous drafts.

309

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