Session 1: From Election Day (Nov 3) to Meeting of Electors (Dec 14)
Hypothetical Scenario 1.2: Michigan’s election night results flip after “late counted” ballots
On Election Night itself, preliminary returns showed President Trump ahead in Michigan, but his lead disappeared and was overtaken by subsequently counted ballots—mostly a large number of ballots cast by mail because of COVID-19 and not able to be counted on Election Night. President Trump has convinced Michigan’s legislature, where the GOP holds a majority of seats in both chambers, to purport to exercise its authority under Article II of the federal Constitution to appoint the state’s presidential electors directly (as state legislatures did in the early years of the Republic). The legislature has accepted President Trump’s claim that the result of the state’s popular vote for president cannot be trusted because of all the “late-counted” mailed ballots and, accordingly, the state legislature must exercise its constitutional power to appoint the state’s electors directly. (Although election officials in the state, including the Secretary of State, have endeavored to explain that these late-counted ballots are entirely valid and not suspicious, there has been considerable confusion and disinformation surrounding the voting process—in large part because of changes and uncertainty induced by COVID-19, but also by other deliberate attempts to increase public distrust of the voting process, particularly vote-by-mail, and the state legislature with President Trump’s urging has been able to exploit all this confusion and distrust.) The Michigan Democratic Party has filed suit in federal court, claiming that the state legislature’s move violates the Due Process Clause of the Fourteenth Amendment, as interpreted in such cases as Roe v. Alabama, 43 F.3d 574, 581 (11th Cir. 1995), because it changes the rules for an election after ballots have been cast. Should the federal court issue a declaratory judgment that the state legislature has acted unconstitutionally, as requested by the Michigan Democrats?