The biggest risk our democracy faces this election is whether the votes cast will even matter. Any number of scenarios could play out. Ballots could be (and in fact have already been) lit on fire, or the courts could intervene to throw out votes. But the possibility we should fear the most is the one we still have a chance to prevent: the United States Congress overturning the election.

Donald Trump in 2020 and early 2021 tried to use Congress to do just this, but he also tried so much else that remembering the details is hard. The details, however, are important. Trump’s desperation after losing the election led him to push to disallow votes everywhere he could—browbeating state legislatures, local election boards, state courts, federal courts, and ultimately the U.S. Congress on January 6. It all failed spectacularly, but that was an amateur effort, and one that would have required near-perfect execution to succeed. Joe Biden had won 306 electoral votes to Trump’s 232, meaning that Trump would have had to overturn the results in several states to become president.

This time, the election results might be closer. A tight margin would allow Trump to play in all of the same fora as last time, and now with people who have spent years developing the art of the steal. Even if Trump loses every court case, every attempt to persuade a state governor or state legislature to toss out the popular vote, and every maneuver to try to pressure state and local officials, he may yet use Congress as a backup plan.

[Tyler Austin Harper: Of course Black men are drifting toward Trump]

This is, I suspect, the “big secret” Trump mentioned this week, with a grin, to Speaker of the House Mike Johnson. It’s a secret only because Trump wants to keep it in his back pocket, but it may be quite similar to what he attempted last time. Under laws passed by Congress, including the Electoral Count Act and the 2022 Electoral Count Reform Act, here’s what is supposed to happen:

On January 6, 2025, the House and Senate are to assemble to watch as electoral votes from each state are opened and counted. If a member of Congress has an objection to the vote from any particular state, the objection must be signed by at least 20 percent of the members of both chambers for it to be taken up. Only two categories of objections are permissible: if a state’s electors were not “lawfully certified” (such as if a state certified a fake slate of electors), or if an elector’s vote for a candidate was not “regularly given” (such as if the electors were bribed, voted for an ineligible candidate, or voted in the wrong manner). Otherwise, Congress is to treat a governor’s certification of a slate as “conclusive.” If the 20 percent threshold is met in both chambers, the issue will be debated for up to two hours. Afterward, both the House and the Senate must vote. The objection is sustained if a simple majority supports it in both chambers. If a simple majority in both chambers agrees with an objection to the appointment of a state’s electors as not “lawfully certified,” then that state is excluded from the Electoral College, altering the denominator in the College. (If a particular elector is struck under the “regularly given” provision, by contrast, the denominator does not change.) This means that the number of votes needed to win in the Electoral College drops accordingly when a state’s electors are struck for not being “lawfully certified.” For example, if an objection to Pennsylvania’s slate were sustained, the state’s 19 electoral votes would be eliminated, and winning the presidency would take 260 electoral votes instead of 270.

Congress’s 2022 Reform Act was intended to reduce opportunities for mischief, but even so, mischief may yet emerge. For example, what does “lawfully certified” mean? If Trump claims that undocumented immigrants voted in a state, does that mean the state’s vote was not “lawfully certified”? What about claims that absentee ballots were wrongly counted? Or that ballots arrived late?

The answer to all of these is an unequivocal no. Lawfully certified has long had a much more precise and technical meaning about procedure—simply whether the state’s governor has certified the vote. That narrowness has led some to say that there is nothing to fear, especially because Congress has tightened the rules in the 2022 act and made it harder for Congress to second-guess election results. I very much hope that’s right. It should be right. It is right. But we are living in a world where the whole enterprise and meaning of law is contested, and where politicians stretch laws past their breaking point. James Madison warned us about this in The Federalist Papers, calling law a mere “parchment barrier.” This time, the parchment may not hold.

Here’s how the nightmare scenario could play out. Imagine the election puts Kamala Harris in the lead, with 277 to Trump’s 261 votes. Further imagine that part of that lead comes from Pennsylvania. And then imagine that Pennsylvania decides to count mail-in ballots that are missing the required handwritten date on the envelope. Trump then challenges that practice, claiming that the Pennsylvania legislature has set rules that forbid counting those ballots. He goes through the Pennsylvania courts, all the way to the Pennsylvania Supreme Court, which rejects his challenge and allows the ballots to be counted. Trump then goes to the U.S. Supreme Court, which also rejects his challenge.

Although that should be the end of the madness, it may not be. On January 6, one-fifth of the House and one-fifth of the Senate can claim that the Pennsylvania Supreme Court acted improperly by counting these ballots, in defiance of state law. They can assert that they have the right to interpret the law independently, and that Pennsylvania has acted lawlessly. The good news here is that Congress in 2022 foreclosed that independent congressional-determination route, and said that court decisions are binding on Congress when it acts on January 6. But there is room for tendentious arguments about what Congress actually legislated, and some (including Senator Ted Cruz) have already said they believe that the 2022 act is unconstitutional. So despite Congress’s very strong 2022 efforts in this regard, an unprincipled House and Senate could try to assert these powers. The assertion of such powers would be bogus, but a debate on the floor would then ensue, and if a raw majority of the House and Senate sustain the objection—no matter how specious it is—Pennsylvania’s 19 electoral votes would be struck, leaving 258 electoral votes for Harris and 260 for Trump. Trump would then be declared the president.

Such a decision could and should be contested in court, and challenged all the way to the United States Supreme Court, where the challenge should win. Congress would be defying the parts of the 2022 law that tightly restricted the types of objections, as well as provisions in the law that make court determinations conclusive on Congress. The question is, if Congress acts lawlessly, what will the Supreme Court do about it? Some are pointing to the Court’s recent decision to permit Virginia to strike 1,600 individuals from the voting rolls as evidence of its politicization, but defenders of the Court can point to the fact that it stayed out of the mischief in 2020, with hopes that it will act responsibly again in this go-round. The situations are, however, different. The 2020 request was on the part of the mischief makers, asking for the Court to affirmatively intervene in Trump’s favor—something the Court was apparently loath to do. This time, nonintervention favors Trump. The Court can say it is acting neutrally by not hearing the case and, by doing so, effectively hand the presidency to Trump in defiance of the will of the people.

[Read: The Democratic theory of winning with less]

The Supreme Court, of course, is fully capable of realizing the difference between affirmatively intervening in 2020 (where it was being asked to facilitate Trump’s theft of the election) and 2024 (where it would be asked to prevent such a thing). A decision to stay out in the face of congressional lawlessness should be unthinkable. And let us hope that it is (recall the Court just last year in Moore v. Harper rejected, by a 6–3 vote, a Republican Party theory that would have given it an immense advantage in federal elections). But just in case, one important thing must be done to prevent this nightmare from unfolding: vote.

If as a result of the vote on November 5, Harris claims a decisive victory in the Electoral College, then there is little to fear, much as Trump might try to fight it. And even if the Electoral College is close, remember that Americans also vote for the House and the Senate on November 5. And the new House and Senate, not the existing ones, will make all of the decisions outlined above on January 6, 2025. If the Democrats control the House, or hold the Senate, this divided government will prevent the nightmare scenario from coming to fruition. And even if the Republicans control both houses in 2025, electing people who will honor the language and purpose of the 2022 Electoral Count Reform Act—which, again, was written to prevent this scenario—will put an end to the madness.

So when you vote, vote for candidates who will ensure that the will of the people will govern. James Madison in “Federalist No. 55” reminds us that the “degree of depravity in mankind … requires a certain degree of … distrust,” but “there are other qualities in human nature which justify a certain portion of esteem and confidence.” Republican government, Madison went on, depends on the latter. Let us pray that those qualities lead Americans to the polls on Tuesday and, once there, that they vote to protect our democracy.

The governing impulse of “heterodoxy” is a healthy skepticism of mass movements, overly broad claims meant to signal virtue, and rigid ideological positions. This orientation, within a segment of the center-left and center-right on the political spectrum, has proved a necessary check on the internet-stimulated, herd-like consensus so many others have adopted in recent years. During the summer of 2020 and the twin calamities of the death of George Floyd and the coronavirus pandemic, I was drawn to a heterodoxy that was conservative in its preservation of liberalism’s greatest achievements: tolerance of diverse perspectives and freedom of expression. It felt refreshingly unaligned, distinct from right-wing reactionary backlash, and like a genuine disavowal of dogma. Donald Trump and all he stands for, I thought, was clearly incompatible with such thinking.

But in the four years since, as Trump and his movement have strengthened their assault on our democracy, I have begun to wonder if this mindset that refuses, by definition, to pick sides contains a fatal flaw.

No single orthodoxy provides adequate solutions to every problem; no ideological team deserves your total allegiance. And yet, this election cycle has repeatedly shown that a reflex to be independent, to reject gatekeeping, to punch at “elites”—or, more simply, representatives of the status quo—can also leave people numb to existential threats that reasonable-consensus positions were developed to oppose. Our values can be turned against us. When heterodoxy is raised above all other priorities, it risks collapsing in on itself.

Until recently, within the heterodox slice of the cultural spectrum, opposition to Trump was the obvious response to his singularly reckless and destabilizing political presence. The number of self-described centrist “Never Trumpers”—starting with Trump’s current running mate, who once compared him in this magazine to “cultural heroin”—were legion. But as the race tightened in recent months, I’ve been struck by a palpable shift in attitude among many liberal and centrist voices—a slackening of vigilance, and a softening on Trump.

This is not to be confused with the 180-degree pivot of prominent MAGA converts such as Elon Musk, Robert F. Kennedy Jr., Tulsi Gabbard, and Bill Ackman, as well as writers and journalists such as Naomi Wolf—erstwhile Democrats who’ve become outright Trump fans. What I observed this past summer, as Joe Biden’s campaign self-immolated and Kamala Harris seized the nomination, was a more general exhaustion among many heterodox thinkers, and a disinclination to support the alternative to Trump that was now on offer. Harris, many agree, is not an ideal candidate. But given the enormous stakes, I wanted to understand how anyone not already ensorcelled by the cult of MAGA could hesitate to support her.

[Kurt Andersen: Bill Ackman is a brilliant fictional character]

I reached out to two of the most thoughtful heterodox commentators I know in an earnest attempt to take this ambivalence seriously. Kmele Foster and Coleman Hughes are both podcasters with significant followings. Both are “Black,” though Hughes is an ardent advocate for colorblindness (he wrote a book this year called The End of Race Politics) and Foster (like me) rejects racial categories. They represent, in my view, the steel-man version of heterodox perspectives, and neither, they confirmed to me this week, is planning to vote.

Hughes told me, when we spoke in September, that he sees Trump’s behavior around January 6, 2021, as “disqualifying.” Yet he listed two reasons he couldn’t bring himself to support Harris. The first had to do with a growing sense that the Trump threat had simply been exaggerated. “If I really felt that Trump was going to end American democracy or run for a third term if he wins, or start a nuclear war, I would vote for Kamala in a heartbeat,” he said. And indeed, he voted for Hillary Clinton in 2016, because he found Trump’s rhetoric so alarming. “He spoke loosely about putting Muslims on a registry. He spoke loosely about using nukes,” he recalled. “I would’ve voted for basically Bugs Bunny over him.”

Despite his fears of Trump’s fascist tendencies, Hughes found the reality of the Trump administration much less dramatic. “He governed a lot more like a normal Republican,” he said. “In fact, many of his policies would be seen as not right-wing enough.” He’s learned, he told me, to “discount” much of what Trump says: “It’s basically just his businessman instinct. He literally talks about this in The Art of the Deal. You start by saying something crazy, and then you walk your way back to a point of leverage in negotiations.”

[Read: An ethicist reads ]The Art of the Deal

In 2020, Hughes voted for Biden, whom he viewed as a moderate liberal and a politician with a record of reaching across the aisle. This is not at all how he perceives Harris, whom he sees as aligned with Alexandria Ocasio-Cortez and Bernie Sanders, and “deeply destructive to the long-term flourishing of the country.” When it comes to foreign policy, “I haven’t seen even a 10-second clip of her impressing me by analyzing anything going on in the world related to geopolitics, foreign conflicts and so forth,” he told me. “I have basically zero signals of her competency as a manager or executive.”

Foster is an entrepreneur (he’s founded telecommunications and media companies) and a libertarian who seldom, if ever, feels represented by a mainstream politician, though he insists that he could vote for a more moderate Democrat. Foster is most concerned about “the excesses of the culture war” and how, “when they become a part of the bureaucracy, whether it’s on a university campus or within the federal government, [they] can actually become weirdly totalitarian,” he told me. He thinks the left is blind to the fact that it, too, has “a profound capacity for the abuse of power.” He pointed, among other examples, to “gender issues,” the movement to defund the police, and the criminal prosecutions of Trump, which, he said, have “a political taint” to them.

[Read: If Trump is guilty, does it matter if the prosecution was political?]

People who are concerned about Trump “deranging institutions” should have a similar concern about Democrats, Foster said. He brought up the idea floated by some prominent voices on the left of packing the U.S. Supreme Court with more justices in order to dilute the conservative majority, which he believes shows an alarming disregard for norms that goes unnoticed because “there’s a greater sophistication on the part of Democrats that makes it a lot less obvious that some of the things that they’re trying to do are bad.”

He sees scant evidence of Harris speaking out against or countering such trends. On this point, it is hard to disagree with him. Harris has said precious little about what, if anything, she would do to distinguish herself not just from the Biden administration, but also from the iteration of herself who briefly and unsuccessfully sought the presidency in 2019. Last month, she could not articulate to Anderson Cooper a single concrete mistake she has made in her capacity as a leader, even as most of the country knows that she covered for a president in cognitive decline.

Many of the concerns Hughes and Foster raise are compelling. And yet, to a disconcerting degree, it all seems beside the point—as though we are debating the temperature of the water and the features and specifications of the life rafts as our proverbial ship is sinking. Both Hughes and Foster were signatories on the Harper’s letter of 2020, a bipartisan statement against creeping illiberalism. (I was one of the writers of the letter.) It has frequently been misrepresented by its critics as an anti-woke document, but it began with an explicit condemnation of Donald Trump, “who represents a real threat to democracy.” As Mark Lilla, one of the letter’s other writers, noted recently in The New York Review of Books, this election is not ultimately about change or policy, or even about blocking Trump; “it is more fundamentally about preserving our liberal democratic political institutions.”

If we cannot manage that, with whatever flawed custodian we have been provided, we may look back on these nuanced policy discussions as an extravagant luxury that we squandered.