1/15 This Electoral College map is my new nightmare scenario: 270towin.com/maps/mLweY I'm working on an essay to explain why, which addresses some of the legal issues arising under the Electoral Count Act, 3 USC 15, if a dispute over the election reaches Congress next January 6.
2/15 This new essay will extend beyond issues explored in previous work, including Preparing for a Dispute Presidential Election: An Exercise in Election Risk Assessment and Management, 51 Loy. U. Chi. L. J. 309 (2020): go.osu.edu/PDPE
3/15 While the Loyola article addressed the possibility of a dispute arising in a single battleground state pivotal to the Electoral College outcome, the new essay will consider the possibility that an Electoral Count Act dispute under 3 USC 15 could extend across many states.
4/15 The possibility of a multi-state dispute, which could range wider than even the 4-state dispute that reached Congress over the 1876 election between Hayes & Tilden, seems increased based on what's occurred in the primaries so far, especially last week in Pennsylvania, etc.
5/15 Which leads me back to the new "nightmare" map: 270towin.com/maps/mLweY Let me say a bit about this map: it's designed to show how things might look Wednesday morning, November 4 (say 3am, if you are Simon & Garfunkel fans; or 6am as folks wake up, if you prefer).
6/15 A map like this could occur only if the election ends up being close enough; I'd appreciate if others, like @NateSilver538, would weigh in on what they think "close enough" means in this context. This map presumably would not be relevant in any kind of landslide or blowout.
7/15 Here's the map's color-coding: Red is states "called" for Trump. Pink is states not called, but where Trump leads at the end of Election Night based on what can be counted up to that point. Dark blue is states called for Biden. Light blue is states not called but Biden leads
8/15 The theoretical hypothesis underlying this map, based on previous "blue shift" research done by @cstewartiii & me, plus considering this year's primaries, is the possibility of many states not called on Election Night but where Trump leads based on what can be counted so far
9/15 The important point about the map is while Trump has only 125 EVs in called states, the combination of states where he leads (pink) and called for him (red) is 316, well above 270. At the point in time this map is designed to reflect (Wednesday morning 3am Nov 4), it is ...
10/15 ... unknown how many, if any, of the pink states would shift to blue (first light, then dark) based on counting additional ballots. There is much to consider about what political & legal dynamic would be set in motion by the existence of this map as of 11/4, 3am.
11/15 Based on what happened in 2018, when there were single-state blue shifts underway in Florida and Arizona, it is easy to imagine significant contestation over the vote-counting process if this map is the state-of-play on November 4, at 3am. This would seem true even if ...
12/15 ...nothing problematic had occurred on or before November 3 concerning the casting of ballots. The mere existence of so many pink states potentially turning blue after Nov 4, during the next week or so, as additional ballots are counted, would be an unprecedented dynamic.
13/15 Even more difficult would be if there were credible allegations of potentially outcome-determinative disenfranchisement in any of the uncalled states, because of extraordinarily long lines at polling places (caused by poll worker shortages), or the failure to deliver ...
14/15 ... absentee ballots to voters who properly requested them, or civil unrest that prevented voters from access to polling places, or any other events that block voters from casting ballots who actively attempt to do so in the election. I know others may wish to consider ...
15/15 ... some of the many issues that might arise in this type of situation, even as I focus specifically on the potential Electoral Count Act implications of this new "nightmare" map. I'm sharing the map & its assumptions now, because I welcome feedback on it as I do this work.
