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If Democrats hold both the House and Senate in January, Trump could be stalemated: For any disputed state, a Democratic-controlled Congress would surely certify the electors approved by the Democratic governor, not the Republican legislature. Even if control is still split between a Democratic House and a Republican Senate, the most widely accepted interpretation of the 1887 law gives Democrats the high ground: Under that reading, if the House and Senate divide on which electors to certify, the tie goes to the slate approved by the governor. (In each key Rust Belt state, thats a Democrat.) But Foley notes that Republicans would likely challenge that interpretation in the courts, which means the Supreme Court may eventually need to determine whether to weigh in or send the dispute back to Congress for a political resolution. Even if the Supreme Court tried to settle such a battle, its far from certain that the losing side would accept its verdict as acquiescently as Gore did in 2000, when he conceded the election the day after the justices 54 decision to stop the Florida recount.

Al Gore made a big point of accepting the Supreme Court [ruling] even though he disagreed with it, Foley says. Thats a way, 20 years on, [that] the situation could be very different now.

What happens if the Supreme Court ducks ruling on the issue at allor issues a verdict that one side refuses to acceptgets even murkier, as Foley and Larry Diamond laid out recently in The Atlantic. But many of the legal experts and political activists contemplating nightmare scenarios say its crucial to remember one thing: Both voters and election officials can still take steps to mitigate the risk of postelection chaos. One is allowing state officials to do the preliminary work of opening mail-in ballots and comparing signatures before Election Day, which would speed up the final count; thats legal in most states, but not in some key battlegrounds, including Michigan and Pennsylvania. (Both are exploring changing the law to allow for such work.) Some progressive groups are encouraging Americans to cast a ballot through in-person early voting, which is far less subject to being challenged than mail-in voting. Green and Robinson both told me that progressive groups prime imperative must be to defend states ability to continue counting votes after Election Day, whether that defense takes place in the courts, in state legislatures, or in the streets.

There is planning in place to have robust grassroots communications and collaboration on the ground, and way more of a communications strategy [than in 2000], to ensure that the public really knows what is going on and they are given opportunities to help fight back, Green said.

Another potentially pivotal dynamic: If Biden is ahead in the key states on Election Night, that will severely limit Trumps options. The presidents strongest postelection play will be to argue against the continued counting of ballots; that argument will be complicated, to say the least, if he trails before the remaining ballots are counted. Every recount lawyer tells you the most important thing is whos ahead and whos behind, Foley says.

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Democrats Wont Cede the Streets This Time - The Atlantic