The worst-case scenerio we could face on November 3 does not involve terror alerts, Diebold, or litigious losers.
It is simply this: Republican state governments might simply ignore the popular vote in their states and appoint Bush slates of electors.
I would call that stealing the election, except it's legal.
Article II, section 1 of the U.S. Constitution:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...
In the early days, electors were directly chosen by the state legislatures, in most states.
In the first three presidential elections (1788, 1792 and 1796), state legislatures themselves chose the electors in most states. Thereafter, popular choice gradually took hold so that by 1832, electors were chosen by popular vote in all states except South Carolina, which clung to legislative election until 1864.
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And in the per curiam (i.e. unsigned) opinion in Bush v. Gore, the Supreme Court took care to point this out:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28--33.
That is what I call the worst-case scenerio... that a Republican state government might disregard the popular vote and use its plenary power to name a slate of electors pledged to Bush.
Can they do that? Yes, according to Bush v. Gore.
The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 ("[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated") (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).
And indeed that is what Brother Jeb Bush and the Florida legislature were preparing to do if the litigation went against them:
Florida's GOP-led
Legislature to choose electors
Dec. 7, 2000 In an effort to fast-track the selection of electors in Florida, the state's Republican-led Legislature will hold a special session on Friday at noon.
...
State Senate President John McKay appeared before reporters Wednesday. Wearing his spectacles halfway down his nose -- as Gov. Jeb Bush is prone to do -- he said, "I believe that the electors should be based upon the vote totals that were available on Nov. 14. And, equally important, on the laws that were in place at the date of the election on Nov. 7." He described the certified Nov. 14 vote as the "least tainted of all," suggesting that the Legislature's likely move to choose electors would swing toward Gov. George W. Bush, making it even harder for Vice President Al Gore to overcome the Texas governor's certified Florida win.
(Read that Salon article if you haven't... Remember how angry you were in December 2000? If not, that article will remind you!)
In that little maneuver, the FlaLege was modestly tying their selection of electors to a particular popular vote count (however questionable). They need not have bothered... they can appoint any electors they want, and they don't need a reason.
Of course this is essentially the H-Bomb of partisan politics. Will they go that far to hold on to the White House?
Why not? Maybe for financial reasons. Would the bond markets not like it? Would insurance companies become concerned about "political risk" in the US?
They have shocked me so many times already, from Whitewater on... I keep underestimating them. But I am going to say "No, they would not go that far."