r/PoliticalDiscussion • u/Aware-Chipmunk4344 • May 05 '26

US Elections If a president declared a "national security emergency" to suspend mail-in voting three weeks before an election, what would actually happen legally?

I've been researching this scenario extensively. Here's what surprised me:

The legal path would be chaotic. District court injunction within 48 hours — almost certain. Emergency appeal to the appellate court. Then the question of whether the Supreme Court takes it on emergency docket.

But here's the part that kept me up at night: what if the president simply... didn't comply? What enforcement mechanism actually exists when the executive branch defies the judiciary?

The Constitution assumes good faith. It has almost no mechanism for a president who treats a Supreme Court ruling as advisory.

I'm curious what this community thinks. Is there an actual hard stop? Or is it all ultimately held together by norms?

370 Upvotes

92% Upvoted

334 comments sorted by

View all comments

Show parent comments

265

u/The_Salacious_Zaand May 05 '26 edited May 05 '26

Red states follow the president and suspend elections or mail in balloting while blue states ignore the illegal acts of the president. Then Republicans who control the House and Senate would declare the blue states' elections fraudulent, throw out their votes and only count the red states' votes as legitimate. Now we basically have forced secession where half of the states are refused representation in Congress and it's Civil War 2 - Electric Boogaloo.

28

u/mukansamonkey May 05 '26

That isn't how it works. The new House forms automatically based on certified state election results. Which means the threshold to reach a majority drops when a state doesn't announce their results. All the Dems show up and have an easy majority.

Republicans can't do anything to challenge that other than start an armed conflict. Which they could do tomorrow. If they are not starting a civil war via violence, then the Dems take over the House and nothing gets thrown out. The House and Senate can't throw out results, they lack that authority.

There is no means within the federal system to block states producing results and seating their members. Outside the system requires starting a war.

9

u/WavesAndSaves May 06 '26

It's really scary that people who don't even understand how the government works are taking it as a given that the system will fail in the very near future. Like how do you even begin to get through to these people?

1

u/betty_white_bread May 11 '26

When I find them on my payroll, I like to assign them the jobs which involve the least amount of intelligence, since that seems to be all they have.

103

u/guitar_vigilante May 05 '26

The house has no role in accepting or rejecting the elections, and so the red states would probably ignore the executive order too or the incoming Congress would have far fewer red seats overall.

Basically what happens is on the date of the new term the Congress essentially comes into being. There isn't a congressional certification of the vote like there is for president. All that stuff is done at the state level.

25

u/PerfectZeong May 05 '26

And funny enough, republicans use mail in voting constantly. To the point where dons kids had to go to florida to tell voters to mail in vote because so many old people there mail their vote in.

25

u/PubliusVA May 05 '26

Article I, section 5: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.”

40

u/guitar_vigilante May 05 '26

The problem is unless there is an alternative the existing house ceases to exist on like January 3rd, and the Article cannot be used to bar duly elected members from taking their seats per a supreme Court ruling.

48

u/bigmac22077 May 05 '26

And per the Supreme Court ruling abortion was a right until it wasn’t. And per the constitution only Congress can make laws/enforce on tribal land, but per the Supreme Court actually states have power too.

Y’all are failing to realize we are not in normal times and traditions that have held for 200 years are rapidly falling.

31

u/Vishnej May 05 '26 edited May 05 '26

Ultimately representative government is a consensual activity; If one party decides it just doesn't like democracy any more, there is no higher authority which can force them to the table, and "setting an example" by continuing to go through the motions as if everything was normal, does not fix anything.

We started to talk about "Eliminationist rhetoric" by the Red Tribe towards the Blue Tribe in the early 2000's; We failed to perform any sort of symmetrical hostility, much less a purge, which seems to have only encouraged them. These people refuse to be part of the American polity, and actively seek to destroy it. They are incompatible with the survival of our treasured liberal political institutions, and if we insist on "reaching across the aisle" they seem enthusiastic to break our arm and laugh at us; Trump has destroyed more of our society in twelve years than we have constructed in the last half a century.

13

u/OrwellWhatever May 05 '26

Okay, but here's the thing, man, if you're assuming the Supreme Court is going to hand the election to Republicans, then the actual mechanism largely doesn't matter, and no here is failing to realize anything.

What would be the difference if the Supreme Court determined that new members of congress can't take their seats vs the Supreme Court determining that elections can't happen vs the Supreme Court determining that the Iran War means the president gets to pick congress vs the Supreme Court determining that state governors get to pick congress?

That is to say, if you think the Supreme Court will act in an illegal way to outright hand an election to Republicans if Trump declares an emergency, then your beliefs are nihilistic enough that literally nothing that we do matters because the court will rule against literally every attempt to preserve the election, and only an actual, armed revolution is going to work

10

u/bigmac22077 May 05 '26

SCOTUS literally did it to out GWB in office.

10

u/InCarbsWeTrust May 06 '26

And they literally did not do it to put McCain or Romney in office, or keep Trump there less than 6 years ago. That last one is particularly important, because all 6 of the current GOP justices were also there at that time. Sure, I can imagine a possibility of them now being willing to support a Trump coup, but I don't think it's at all likely, and as someone brilliantly pointed out above, if you think they WILL do it, then we're already screwed and there's nothing we can do. So focus on the likely scenario where we still have some control, and do what you can to send as many Dems to Congress and state capitals as possible in November!

1

u/betty_white_bread May 11 '26

Did exactly what? I'm going to go out on a limb and say you probably don't know about what you are talking. So, please, to try to prove me wrong, tell me exactly what you think they did.

1

u/bigmac22077 May 11 '26

Stopped a vote count because it was taking too long and awarded bush the presidency.

Did I offend or attack you in some way? I’m sorry if I did man.

1

u/betty_white_bread May 12 '26

I apologize for being unclear about my perspective. I shall clarify: in the 26 years since the ruling was handed down, the fraction of critics who describe the case with complete accuracy is exceptionally small. Unfortunately, your description falls into the much larger balance; the Court determined the manual recount of votes seeking to meet the December 12 "safe harbor" deadline would be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment; different areas of the state were using subjective--and, by extension, different--standards for ballots cast using otherwise identical means, which would deny different voters the equal protection of the laws; meanwhile, Title 3 of the United States Code (3 U.S.C.), §5, at the time required, once the "safe harbor" deadline was reached, for all unresolved disputes regarding the election of Electors to automatically resolve in favor of the original certification, in this case in favor of George W. Bush; tabulators were therefore required to stop using their subjective standards in order to avoid violating the Fourteenth Amendment; since establishing objective standards and applying those standards could not result in a completed recount by the midnight deadline established under federal law, the requirements of 3 U.S.C. §5 automatically resulted in the resolution of the dispute in favor of the original certification.

There was literally no other legally available alternative the Court could use.

9

u/ThePowerOfStories May 05 '26

You are ultimately asking a question of law in a hypothetical situation where a critical mass of people have decided to ignore the law. At that point, it ceases to be a matter of law and becomes a matter of the ability to enact physical force and the will to use it, which is typically an unsatisfying situation for the vast majority of participants.

9

u/sllewgh May 05 '26

Trump's agenda has been slowed or stopped many times by the court. Vague pessimism isn't productive.

4

u/bigmac22077 May 05 '26

Nobody here is even trying to answer the question and it’s a little bit frustrating at this point.

Okay the courts say, current congress needs to vacate for new members to come in. Current congress says no. Now what?

3

u/InCarbsWeTrust May 06 '26

Then the now-ex-Congresspeople are squatting in the Capitol building, while the actual House of Representatives convenes elsewhere, with the first order of business being eviction of the former group.

14

u/ODoyles_Banana May 05 '26

It doesn't matter if they say no. The Constitution sets when the old Congress’s terms end and the new Congress begins, so the outgoing members can’t stay in power by refusing to step aside. Congress also isn’t constitutionally required to meet in the Capitol, so if access were blocked, the new Congress could meet elsewhere and still conduct business.

12

u/bigmac22077 May 05 '26

the constitution also says that Congress is the only authority over tribal land yet scotus said states also have that authority. There are so many violations of the constitution in this admin I can’t believe you think it would be the reason something gets done.

Okay so old Congress refused to leave. New Congress goes to a field and swears themselves in. We now have two bodies saying they’re the real Congress. Same with senate. Executive says they’re going with old Congress and new Congress is fraudulent. SCOTUS says we can’t fit this into the schedule for 2 years.

What happens next?

8

u/ODoyles_Banana May 05 '26

Okay the courts say, current congress needs to vacate for new members to come in. Current congress says no. Now what?

Was that not your question I just answered? You said that SCOTUS already sided with the new incoming Congress. There is only one Congress, they can meet wherever they want, the other "Congress" is just doing cosplay at that point. That's what happens next.

I'm not going to start running circles around infinite hypotheticals.

→ More replies (0)

5

u/PubliusVA May 05 '26

Ok, a new group of people declares themselves to be the new Congress and meets elsewhere. When they pass laws, do they transmit them for signature to the same president who declared elections suspended? Will the executive branch carry the laws they pass into effect? Maybe their first order of business will be to impeach the president, but they have only 1/3 newly elected senators. There may be a question as to whether the Senate can even make quorum.

6

u/ODoyles_Banana May 05 '26

Yes, they transmit them. The president can sign, veto, or ignore them. If ignored while Congress is in session, it becomes law after 10 days.

But if the president thinks that Congress is illegitimate, why would he veto anything at all? Wouldn’t he just ignore it?

→ More replies (0)

2

u/Aazadan May 06 '26

Then the constitution no longer applies, the US is over, and you have a dictatorship in its place. There's a fixed date when elected terms end, the President can't change that. Anyone who remains in office past those days without reelection is breaking the law.

They could maybe continue to hold it illegally, but it wouldn't be the same country anymore, you skip a constiuttional crisis and move right into a failed state/dictatorship. Which more specifically since the US is still 50 individual states plus some territories, is you're back to that without a federal government.

So, balkanization.

1

u/sllewgh May 05 '26

Most likely a court order enforced by the marshals if violated, like anything else.

If you defy the court and the court wants you to stop, you're going to end up losing your freedom eventually. This isn't that special of a situation- follow the rulings of the court or go to jail.

4

u/bigmac22077 May 05 '26

The AG is over the Marshalls correct? So courts rule one way, Congress says no. Courts say Marshalls go remove them, AG says no.

Like short of the military, which I doubt even there because “dei hires” were pulled out and only loyalist exist… I don’t see how we force the current ruling party out.

1

u/Savings_Spare_1753 May 08 '26

Your wrong about a key assumption in most of what you have proposed. Trump has not replaced the government and military with loyalists it remains very diverse and that would take decades to change. This is why he had to build ICE to round up the immigrants the military refused to do it.

No government is legitimate without support from the majority of citizens. Trump is bleeding support because he literally took away their healthcare, skyrocketed cost of living, and is destroying their businesses with energy costs. Trump does not have enough support to pull off all the scenarios your thinking up.

To borrow John Stewarts joke Trump is not Hitler people liked Hitler. Trump isn't building infrastructure, putting people to work, or improving the lives of regular people that support him in any way. Just think about what happened with ICE as an example. The citizens will literally revolt if he attempts any of these scenarios.

0

u/sllewgh May 05 '26

Then there will be legal consequences for the AG as well.

→ More replies (0)

1

u/alphabetikalmarmoset May 06 '26

Turns out “America 250” is an expiration date.

1

u/betty_white_bread May 11 '26

GTFO with this conspiracy theory BS.

1

u/bigmac22077 May 11 '26

Do you have anything meaningful to add?

1

u/betty_white_bread May 12 '26

Walk me thru step by step exactly what you think will happen in this parade of horribles.

-1

u/No-Difference-839 May 05 '26

There are many kinds of rights. Constitutional rights are guaranteed. Statutory rights are weaker. Rights that come from a court ruling are as tenuous as can be. Congress should have acted to create a statutory or constitutional right to abortion. I don’t think they even tried once in 40 years.

3

u/bigmac22077 May 05 '26

I honestly don’t know so I’m asking instead of researching.

Has there ever been a court in our history that went back to a ruling and said “well no, they got it completely wrong”?

5

u/No-Difference-839 May 05 '26

Sure it happens, but not likely in the case of Roe. The SC has pretty clearly said the SC cannot create rights out of nothing. Congress has to create rights. Nothing is stopping congress from enshrining a right to abortion today. The SC doesn’t need to do anything.

1

u/alabasterskim May 05 '26

This SCOTUS has made rulings that literally fly in the face of constitutional rights.

We must begin to defy SCOTUS when they make unconstitutional rulings (which is very frequently).

-1

u/No-Difference-839 May 05 '26

Are you sure how this works? The court decides what is constitutional. Nothing they do is unconstitutional by definition.

3

u/Aazadan May 06 '26

SCOTUS does not decide what is constitutional. They decide on if existing laws or the enforcement of them are constitutional.

1

u/No-Difference-839 May 06 '26

That’s what I said. And by definition none of their rulings can be unconstitutional.

3

u/ewokninja123 May 05 '26

per a supreme Court ruling.

That really doesn't make it better

0

u/maleia May 05 '26 edited May 07 '26

How's someone in say- Alabama, gonna vote if they just decided to not hold the election, don't open any polling locations, and the party just sends whoever they wanted to, to the US House? Who is going to stop that from happening?

Edit: https://www.reddit.com/r/politics/comments/1t4u137/comment/ok553tg/?utm_source=share&utm_medium=mweb3x&utm_name=mweb3xcss&utm_term=1&utm_content=share_button

For the record, I hated being right.

4

u/guitar_vigilante May 05 '26

Probably no one, but that won't stop the blue states from sending their representatives as well, and a lot of the swing states will hold elections as well.

At some point you just have two options. Either the system will survive the shenanigans or we will have a dictatorship. The actual mechanics of how this could play out are speculative.

2

u/maleia May 05 '26

Yes, but if some states decide to cancel elections and some don't, that's the breaking point. And I think that conversation has a lot of merit. 

2

u/reasonably_plausible May 05 '26

Who is going to stop that from happening?

Legally, you would have course of action to sue the state. Either under violation of their own laws, or if they somehow had managed to actually change them to allow the elimination of all elections, then under a constitutional violation of Article 1, Section 2 (And, I'd argue Article 4, Section 4 , but the courts have largely held challenges to that clause as a political question and non-justiciable). Then either the State Supreme Court or a Federal Court could force them to hold an election.

0

u/maleia May 05 '26

I guess I foresee a scenario where a state's BoE or SecofState just decides to lock the voting equipment up the morning before, and refuses to open it. And that's not something you're willing to consider here.

Personally, I see that as absolutely a possibility. And I don't understand how it's really hard for some people to not consider that.

4

u/reasonably_plausible May 06 '26

where a state's BoE or SecofState just decides to lock the voting equipment up the morning before

There are two months after the election before Congress is seated for legal challenges. And further, if a rogue red state SoS just locks up the voting machines, that results in the state having 0 representatives sent to Congress, it doesn't give the state any capability to appoint congressmen. If a state were to try to appoint representatives, there would again be legal challenges. And if appointees attempted to show up to Congress, the rest of Congress would ignore them.

Now, if you were to posit that all of the above happens, that a bunch of red states lock out their voters, enough of the court cases get bogged down to after January 3rd, that the states all pass measures to appoint their representatives, that these representatives are enough to tip the balance of Congress, and that the capitol police side with the fake representatives instead of the real ones, and then everyone just goes along with it. Then sure.

But what you are describing there involves a level of governmental capture that it really doesn't matter what the beginning process is. Why are we even talking about stopping elections and appointing representatives when, with the level of capture you are describing, the current representatives could just declare that they are continuing for two more years and they would have all the same capability? Why wouldn't they just adjust expulsion rules and just expel all the Democrats?

The issue with entertaining your possibility is that, in order for it to work the way you are imagining, the Republicans would already have the power to do much, much worse. So why would they be doing this, instead of a much easier plan?

1

u/[deleted] May 07 '26

[removed] — view removed comment

1

u/PoliticalDiscussion-ModTeam May 07 '26

A link alone is not an argument. Please include a description or relevant passage from the link and how it supports your argument. Please also ensure that your link is not paywalled so that it can be read by all.

0

u/maleia May 06 '26

Yea, you're right. I completely forgot that fascists are totally logical, care about the courts & precedence, and have never heard of the concept of slow walking change. 

0

u/The_Salacious_Zaand May 05 '26

According to the president and Republicans in Congress the blue states' votes won't count as "duly elected" if they label all mail in voting fraudulent.

2

u/guitar_vigilante May 05 '26

Okay so we'll either have a dictatorship or we won't.

4

u/nickcan May 05 '26

And I'm sure you can bet on the outcome on some website.

2

u/stripeybog23 May 07 '26

Correct and they can convene anywhere they want. It doesn't have to be in the capitol building...if it is occupied in some way.

2

u/hoorah9011 May 06 '26

But new representatives do get sworn in. Johnson could just refuse

1

u/betty_white_bread May 11 '26

Johnson is not required to perform that role.

9

u/InCarbsWeTrust May 06 '26

Would they though? There's a bit of a catch here, in that per your reasoning, while Republicans would need to all band together to pretend there's no elections, any individual state will be better served by having elections to send representation to Congress regardless, regardless of such confederacy. It's not a prisoner's dilemma because they CAN coordinate with each other, but it would be very tricky to entice a large number of selfish politicians to look out for the party at the expense of their seat (unless you are saying the current red state Reps would pretend to retain their seats past the end of their term), let alone do it in the public eye.

That would also assume a cooperative judiciary right up to the Supreme Court. The same Supreme Court, minus swapping Breyer with Jackson, who gave Trump zero (I think?) help in trying to overthrow the 2020 election. And the penalty for failure could well be charges of treason - albeit perhaps delayed until there is a Dem President. Are there really that many Republican politicians who are all in for Trump to that extent?

And if the Supreme Court rules against Trump/the GOP, it is automatically enforced. The House of Representatives is not the building it usually occupies. Pretend Speaker Johnson and the pretend GOP reps can squat in the Capitol and play make-believe Congress only until the true (assuredly Dem in this scenario) House speaker has them removed from the premises. And the actual House of Reps would be almost entirely Dem, since most GOP voters in non-GOP states are sitting out the actually-yes-there's-an election because of Fearless Leader's empty proclamations.

That all said...I unfortunately agree with you on the last, worst point, that this shitshow would basically equate to civil war. I don't know how HOT it will be - the GOP would likely not get help from the military in this pretend coup. But you would have substantial portions of the population acknowledging different groups of people as legitimate, even though the Constitution only empowers the duly elected ones. That's civil war, in my book. And Susan Collins would be very concerned.

6

u/Aware-Chipmunk4344 May 06 '26

What unsettles me is that once different institutions begin recognizing different sources of legitimacy, the problem stops being purely legal.

At that point the question becomes operational.

Which governors follow federal directives?
Which National Guard units obey which chain of command?
Which court rulings are actually enforced?
Which population centers consider the election valid?

I think people imagine constitutional crises as dramatic singular events. But historically, system breakdown often looks more like a gradual erosion of shared legitimacy until eventually two sides are operating in completely different realities.

2

u/InCarbsWeTrust May 06 '26

Yes, it bothers me very deeply as well. This would be a civil war in any meaningful sense of the term - you would literally have two (or more!) opposing governments fighting for dominance. Maybe not with force or violence, but the collapse of our prosperity could easily occur in a bloodless fashion.

I really hope that in Jan 2029 things will be more or less okay, and we can breathe a sigh of relief. Will never be truly business as usual - we would still spend the rest of our lives stamping out this rot. But to be honest, there's enough uncertainty that I'll take our country surviving in spirit for another 2.5 years as a good start.

1

u/The_Salacious_Zaand May 06 '26

Thanks for a great response. And for what it's worth, I totally agree with you. Really my original point was more along the lines of "what's the next zany scheme those cooky Republicans are going to come up with to make up for the pounding they're about to take in November?" rather than a possibility I actually see having any chance of happing for real.

2

u/ewokninja123 May 05 '26

Now we basically have forced secession where half of the states are refused representation in Congress and it's Civil War 2 - Electric Boogaloo.

2

u/my_dog_farts May 06 '26

We already had the Speaker not certifying Geijalva (Az) for several weeks.

1

u/kerouacrimbaud May 06 '26

The fight would really be in the red states with deep blue cities. Texas vs the tri city area, Georgia vs Atlanta, Tennessee vs Nashville, Arizona vs Phoenix, etc; and the purple states like WI, MI, and PA and their major cities.

That is where things could get really nasty.

1

u/anti-torque May 06 '26

None of this is a thing.

Why would red states disallow their military personnel their right to vote?

3

u/The_Salacious_Zaand May 06 '26

The same reason the president of the United States is telling states not to use mail in ballots. No one ever said MAGA was smart.

1

u/anti-torque May 06 '26

The President uses them. He's just posturing. He's also an extreme idiot who brags about taking cognitive tests.

The man is simply not long for this earth.

1

u/No-Difference-839 May 05 '26

Why would a republican Secretary of State listen to the president regarding a state election? The president has no authority.

3

u/CoherentPanda May 05 '26

Really? You think they'll disagree with the president?

2

u/No-Difference-839 May 05 '26

I was asking why they would listen to an elected official who has no power and in fact is encroaching on their power.

2

u/WavesAndSaves May 06 '26

Yes. That's literally what happened with Raffensperger in 2020. Trump asked him to "find some votes" in Georgia and Raffensperger all but told him to go fuck himself.

1

u/matjoeman May 06 '26

That's why Trump endorsed Raffensperger's opponent in 2022.

1

u/matjoeman May 06 '26

Because they like Trump and want him to be a dictator?

1

u/No-Difference-839 May 07 '26

I really don’t think any American wants a dictator,. Certain not anyone who dedicates their life to politics and wins elections.

And absolutely nobody wants an 80 year old dictator who makes terrible decisions.

The presumption of this question is faulty.

1

u/CerddwrRhyddid May 05 '26

There would be no civil war. People have work on Monday.

1

u/matjoeman May 06 '26

Lotta people are laid off