Hay un interesante artículo de Edward B. Foley, Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management, escrito en 2019, que advertía de la posibilidad de lo que está ocurriendo ahora mismo. Su conclusión era ésta:
We must hope that none of what is described in this article comes to pass. Instead, the nation will be well served if the outcome of the 2020 presidential election is so lopsided as to be impossible to dispute. Even if President Trump were inclined to resist a result that everyone else, including all Republican Senators accept, it would be impossible for him to cling to power as long as Congress conclusively concludes that his opponent is the winner. America’s military will recognize Trump’s opponent as the new commander in chief once Congress authoritatively declares this electoral outcome, and any protests from Trump to the contrary will be utterly ineffectual.
The problem would occur, if it does, when the two houses of Congress cannot agree as to which candidate won the presidential election. This kind of disagreement is unlikely to develop unless something happens that gives Republicans and Democrats in Congress a plausible basis for disputing the outcome. But a key premise of this article is that it would not take an extraordinary calamity, like a foreign cyberattack, for there to be conditions enabling partisans to dispute the result. Instead, a dispute engulfing Congress could arise from a situation as routine as the kind of “blue shift” described at the outset.
Given this possibility, it is truly irresponsible that Congress has not attempted to eliminate—in advance of the 2020 election—the ambiguities that plague the Electoral Count Act. The purpose of the statute is to handle the circumstance in which Congress is divided over the outcome of a presidential election. But the statute is woefully inadequate for its intended purpose. If Congress fails to remedy this inadequacy before ballots are cast, then the nation will have to cope as best as it can if the two houses of Congress disagree when they meet on January 6, 2021, to officially declare the result of the 2020 election. And the more it appears that Congress is unable to resolve this disagreement before noon on January 20, when the new president is to be inaugurated, the more it will appear necessary that the Supreme Court must settle the matter again, despite whatever reluctance it might have for a repetition of its role in 2000.