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Assume in some US state, the elections in November will not meet minimum standards of free and fair elections, e.g. a vast amount of votes is lost (in the mail), or extreme riots, or due to Corona, voting cannot happen at many places.

What would then happen?

Can a court decide to repeat the election? If so, this would probably need to happen very soon to be meaningful.

What else could be the result?

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    Minimum Standards, can you cite where to find these standards? – BobE Sep 26 '20 at 12:22
  • @BobE I don't know any source. But I think that the USA, as any democratic state, has certain standards that an election must fulfil. E.g. I cannot image that an election where all African American voters were hindered to vote would be valid. – J Fabian Meier Sep 26 '20 at 12:58
  • If ALL persons of an specific ethnic background were excluded that appear to be unfair. But would rejection of ballots for cause, thousands of ballots be unfair? What is the standard there? – BobE Sep 26 '20 at 13:24
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    While I do understand the question, and think it makes sense, by my personal standards ignoring 49% of the votes in the state and pretending they voted for the same guy the 51% voted for is not fair. So the question may benefit from a clarification, such as "if the Supreme Court rules that an election result is invalid, what happens next?" or "is there consensus on what would need to happen during a US election for a court to rule the result invalid?". – Peter Sep 26 '20 at 14:19
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    @jamesqf A bit of a strawman, many US voters will not be voting by mail, and are still vulnerable to typical voter suppression tactics. But to answer your question, bad actors in the post office could still target post offices that are in areas with a large minority population. Sure, you might throw out some of the wrong ballots, but you could still achieve a disproportionate impact. – Azor Ahai -him- Sep 26 '20 at 17:53
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In a nightmare scenario where the popular vote cannot be certified or cannot be certified in time, the realistic option would be for the state legislature to appoint a slate of Electoral College delegates instead. The date the Electoral College meets (December 14 this year) is specified by Federal law so that cannot realistically be moved. Federal law sets a "safe harbor" date (December 8 this year) which is the deadline for states to choose their slate of electors and ensure that Congress accepts them. It is highly unlikely that you could have an election November 3, count the ballots, work through the litigation that would undoubtedly arise if there was large-scale fraud or large-scale disenfranchisement due to riots or COVID or some other reason, schedule and hold a new election, count those ballots, and have the resulting slate of electors appointed by December 8. And if the issues are not with fraud but with an inability to completely count or recount the votes quickly enough because of delays due to COVID, states rushing to adopt widespread mail-in voting, court challenges, etc., starting a new election would be counterproductive. There are reports that both sides have already started game planning scenarios in which friendly legislatures or governors in swing states are called on to do just this.

In a worst-case scenario, states send competing slates of electors to the Electoral College and the Senate, presided over by Vice President Pence, would have to determine which slate of electors to seat. This would most likely happen if a Republican legislature (Republicans control the legislature in the most likely swing states) voted to send a Trump slate of electors to the Electoral College because of issues with the popular vote results while a Democratic governor (Democrats hold the governor's office in many of the likely swing states) declines to certify that slate arguing that the results of the popular vote should win out. The biggest issue with competing slates of electors happened in the election of 1876 but it happened more recently (though it didn't impact the overall results) in 1960 when Hawaii sent two slates of electors.

For deeper dives on some of the potential outcomes

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    It is not true that: The date the Electoral College meets ... is specified in the Constitution so that cannot be moved. It is fixed by law. See: 3 U.S. Code § 7.Meeting and vote of electors – Rick Smith Sep 26 '20 at 14:27
  • @RickSmith - Quite right. Fixed that. – Justin Cave Sep 26 '20 at 14:33
  • See Barton Gellman's Piece in the Atlantic "The Election That Could Break America" theatlantic.com/magazine/archive/2020/11/… . That details this scenerio. – BobE Sep 26 '20 at 17:29
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    "states send competing slates of electors to the Electoral College and the Senate, presided over by Vice President Pence, would have to determine which slate of electors to seat." The Electoral College doesn't meet together in DC -- only their ballots go to the Senate. – eques Sep 29 '20 at 16:53
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What happens if presidential elections were not fair (in some states)?

GovTrack, in response to,

“He commits to a peaceful transfer, as long as it’s a fair election.”
— Mark Meadows, chief of staff to President Trump and former representative, on the end of President Trump’s term as president. Sep 25, 2020

opines that,

The United States Constitution does not say that elections must be fair. [...]

This is a country of laws first, fairness second. We follow laws today and make them fair tomorrow. [...]

On January 20, 2021 at noon, the current term of the President of the United States will end — fair or not. [...]

Our mission cannot be fulfilled when faithful execution of the law is replaced with an ultimatum for something that does not and has never existed.


Can a court decide to repeat the election?

No, the date of the election is fixed by law and state laws will determine what actions may be taken with regard to electors for president and vice-president.

However, the courts are already involved state election laws in other ways.

Federal court overturns Texas' repeal of straight ticket voting option, 09/25/20

A federal judge issued a ruling late Friday blocking Texas from eliminating straight-ticket voting as an option for the state’s voters in this year’s election.

Marmolejo ruled that removing the option would “cause irreparable injury” to voters “by creating mass lines at the polls and increasing the amount of time voters are exposed to COVID-19” and “likely to cause confusion among voters.”

Most states do not offer a straight-ticket option, but the practice has become popular in Texas, which notoriously has long ballots.

State Republicans passed a law in 2017 barring straight-ticket voting, arguing that removing the option would press voters to make more informed decisions about for whom they cast their ballots. An amendment delayed its implementation until the 2020 general election.

Democrats sued Texas in March over the 2017 law’s implementation and were swift to hail Friday's ruling as a win against voter suppression.

  • Republicans argue that more informed voters is fair.

  • Democrats argue the allowing a straight Democrat vote is fair.

  • A federal judge ruled that delaying the implementation of a duly enacted law is fair.

There are no standards, nor any requirements, for fairness — merely laws to be enforced.


What else could be the result?

After all is said and done, Democrats and Republicans will take positions and argue until the next election. Maybe they will compromise on some issues, maybe not.

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A. The Constitution requires the President and Vice President take office on January 20 (used to be March 4). If that doesn't happen, it's a "constitutional crisis" and we're outside the bounds of prescribed law. As you mention, this could be a tight deadline for disputed elections.

B. Within certain parameters, states fully control the selection of their electors. Most issues would be handled at the state not national level.

C. Courts can resolve disputes about the election, e.g. in Florida in 2000. There's no precedent for an entire redo and it's unlikely that would happen, though nothing inherently precludes such a measure.

For example of compromised elections, look at 1876 (Hayes vs Tilden). It was a complete sh*tshow: violence, intimidation, fraud, political shenanigans of every kind. It took months to sort it out (fortunately Inauguration was still March 4) and the losing candidate never accepted the legitimacy of the outcome. Anyone wanting to understand what might happen in a compromised US election should start there.

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