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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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