How Trump Could Still Steal the Election, Part Two

A Mess, Not a Process

Last week, I discussed how Donald Trump could try to steal the presidential election through voter suppression, voter disqualification and court decisions, and how Republicans planted the seeds of such an effort long ago.

I’ll now address how, even though Joe Biden is president-elect, Team Trump could seek to reverse the result by taking the fight to state legislatures, Congress and the Supreme Court. The strategy would exploit archaic, arcane aspects of our electoral college system that are even more nonsensical than you might imagine.

I’ll also sketch why Trump will most likely fail, not least because it might not be in the interests of many Republicans or the Court to see this battle through to the bitter end.

But “most likely” leaves no basis for complacency. That’s especially the case since Trump, like other would-be and actual autocrats elsewhere, has shown us who he is.

The dates I provide below are set in stone by either the Constitution or relevant federal statutes. Unfortunately, little else is.

It’s accordingly more appropriate to think of how this all could unfold as much more a mess than a process.

Enter the Electors

Trump’s election theft efforts could start to bear fruit when the time comes for states to certify their victorious slates of presidential electors. The electors are the folks for whom we are actually voting on Election Day, even though in most states their names are not on the ballots. The electors in turn participate in the electoral college vote that determines who wins the presidency.

The deadlines for such certification of the victorious slates vary from state to state. However, federal rules require that all states must certify the electors by December 8.

But here’s a key question: Who in the state does the certification?

The answer: It’s unclear. We haven’t had a dispute about this in almost 150 years, and even that left the issue unsettled. But as I’ll explain below, conservative Supreme Court members have recently suggested that state legislatures have sole discretion on this.

Thus, if Trump’s demagoguery, Attorney General William Barr’s potential but unprecedented voter irregularity investigations or unexpected developments push Republican state legislators to try to overturn their states’ popular votes, those legislators may have an option. More specifically, a Republican-controlled legislature could claim that Biden actually didn’t win the state; rather, that Democratic fraud or other irregularities just made it seem that way.

The legislature could then declare that the popular vote actually favored Trump. Or, toward the same end, it could claim that the popular vote winner is impossible to determine. In either event, it could then certify a pro-Trump slate of electors.

One big caveat here: To deny Biden enough electoral votes to overturn the election, three states’ legislatures would have to substitute pro-Trump electors for pro-Biden ones. But Republican legislative leaders in Wisconsin are rumbling about this possibility. Fox bloviator Sean Hannity and Trump sycophant/Senator Lindsay Graham – significant not for any sagacity but for having Trump’s ear – have voiced similar sentiments. And Georgia’s two U.S. senators are casting doubt on a fellow Republican’s administration of the state’s election, calling on him to resign.

But Wait!

Don’t the states have to abide by the popular vote in certifying electors?

No. That’s nowhere in the Constitution. True, all states have adopted legislation awarding their electoral votes to their popular vote winners. That rule has stood for many decades. But they all have it in their power to change this, one way or another.

If Republicans were to go this route in closely contested states, the path would be especially easy in Arizona and Georgia, which have Republican governors as well as legislatures. Pennsylvania and Wisconsin both have Republican legislatures and Democratic governors, which complicate but don’t preclude this approach.

Now, having said this, I’d emphasize that such moves could and should be ruled unconstitutional by the Supreme Court, since they break with what had been common interpretations of relevant laws . But again, the current conservative Court seems open to this possibility.

But Wait Again!

Haven’t Pennsylvania and Wisconsin already been declared Biden wins by all major news organizations and Arizona by many of them (even including Fox News)? And isn’t Georgia almost certainly to remain in the Biden column after it conducts its legally mandated recount?

Yes. But so what? These results are all unofficial. The official steps for picking the president don’t’ start until the states certify electors – again, by December 8.

And this is where it could get interesting, or ridiculous, or both.
The fully Republican governments of Arizona and Georgia could conceivably overturn the popular vote, claiming that Trump won or that the results are unclear, and pick pro-Trump slates of electors. The Democratic governors of Pennsylvania and Wisconsin could try to counteract similar pro-Trump moves by their Republican legislatures. The governors would certify their own groups of electors, thus creating dueling Democratic and Republican slates.

But Wait One More Time!

Isn’t the law clear about whether the legislatures’ or the governors’ certifications take precedence?

Good question. But bad answer: The law is so muddled that we don’t know for sure.

The lack of clarity would only intensify on Dec. 14, when the dueling slates would each separately meet (or perhaps video conference) in their respective home states and cast their electoral votes for president. Congress could then receive from Pennsylvania, for example, two competing groups of certified electors.

Or Just Run Out the Clock

Yet another and perhaps politically clever variation on the pro-Trump strategy would be if his litigation intentionally delays the finalization of the popular vote count until nearly or after the December 8 deadline. Under those circumstances, a Republican legislature could more powerfully claim that there really is no popular vote winner.

Recall, too, that such a deadline played a role in the Supreme Court bringing a previous presidential election dispute to an end. The name of the case? Bush v Gore.

The Fight Shifts to Congress

In addition to litigation over which state slate is legitimate and the intense political infighting that could accompany the legal battle, the fight would shift to Washington, where the newly elected Congress meets in joint session on January 6. With Vice President Pence presiding, the Senate and House together will count and could accept the electoral college results that day – assuming they agree – thus completing the last stage of our presidential election.

At this point, matters could get even more convoluted and confusing. If, say, Pennsylvania’s Democratic governor and Republican legislature have respectively submitted competing electoral slates for Biden and Trump, Congress must decide which slate to accept. The Democratic-majority House and the (likely) Republican-majority Senate obviously would make different choices.

The decision is slightly more straightforward if the same party controls both houses, as the Republicans do in Arizona and Georgia. There would only be one slate for Congress to accept, then. Perhaps, though, the House would still reject it.

Furthermore, Vice President Pence could assert that his constitutionally prescribed role, presiding over the joint session, is substantive and not just ceremonial. He could accordingly decide to accept a sufficient number of Republican slates of electors to toss the victory his and Trump’s way. As absurd has this is, and as clearly open to challenge by the Democrats, it’s yet another regard in which the law is not absolutely clear.

Georgia On Our Mind

Since so much in the election and its long-term aftermath could hinge on whether the Democrats retake the Senate, the January 5 run-off elections for both Georgia Senate races – necessitated because the state’s law requires a majority vote for victory – could prove crucial.

With all but those two contests now decided, the Republicans have a 50-48 edge in the incoming Senate. They’re favored to win one or both, since their candidates won pluralities in both contests on November 3. But stranger upsets have happened, as Hillary Clinton could assure us in recalling 2016.

If the Democrats do win both, they would control the body during a Biden Administration by virtue of Vice President Kamala Harris breaking the tie…but only after she and Biden would be inaugurated on January 20. Until then, Pence would be the presiding officer and perhaps the tie-breaker regarding electoral college issues. But even that is not totally clear.

Take It to the House

But wait one final time! If Republicans very likely retain control of the Senate and the Democrats the House, the two sides obviously would disagree about which electoral slate(s) and thus presidential candidate to select. In the event of such a conundrum, the matter shifts to the House of Representatives alone to decide.

If you think this is good news for the Democrat-controlled House, think again. The decision there to select the president would be based on one vote for each state delegation, not the overall composition of the body. The Republicans have a majority in more state delegations there, even though there are overall more Democratic representatives. The House would thus make Trump president again.

The conceivable variations on these themes get even more complex and perplexing. They include but are not limited to: House Speaker Nancy Pelosi barring the House from meeting and selecting the president; the Senate selecting the vice president while the House can’t settle on the president; and Pelosi becoming acting president if the disputes about both the president and vice president remain deadlocked, with neither one picked.

But enough confusion for one post. I’ll leave it there. Except…

Enter the Supreme Court

As you can tell, many matters I’ve discussed – and many more I haven’t touched on – hinge on interpretations of constitutional and statutory provisions that are incomplete, vague and inadequate. At various points along the way, including which electoral college slates to accept and which conflicting congressional processes to follow, the Democratic and Republican litigants might turn to the courts.

Now, there is no guarantee that the courts will accept all cases. They could decide to let the competing parties submit their own slates to Congress and let Congress thrash out the matter. Or the Supreme Court could abstain from involvement on the grounds that the Constitution leaves electoral college matters to Congress or, more implicitly, that it does not want to delve into an intense political battle.

Or it could opt to get involved. And with Amy Coney Barrett joining the Court, the conservatives now have a secure 6-3 majority. It could proceed to rule on cases that decide which popular or electoral college votes are counted. And it could do so in the same way it has ruled on so many voting rights cases, in favor of extreme gerrymandering, voter suppression and the Republicans.

On practically the eve of the election two Trump justices, Neil Gorsuch and Brett Kavanagh, articulated an atrociously trailblazing rationale for undercutting voting rights even more. Their opinions in a Wisconsin case suggest that, in Gorsuch’s words, “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules” and that the U.S. Supreme Court can overrule state supreme court rulings to the contrary.

If adopted by the Court’s majority, which a leading constitutional scholar warned could be imminent and would constitute a post-election coup, the justices’ dubious reasoning would reverse a history of the Supreme Court generally deferring to state supreme courts in interpreting state law. It could also mean that Republican-controlled legislatures’ moves (such as replacing popularly elected electoral college slates with their own) in any of the closely contested states would be upheld in election disputes. Such a ruling would return Trump to the White House.

Should the Court go this route, the result would be ostensibly “legal.” Yet the election would still be stolen, due to the Court’s adopting a novel, fallacious, results-based approach to the issue.

Optimism in the Face of a Disaster Scenario

I’ve sketched here what Trump and his allies could do to return him to the White House. But I’m cautiously optimistic that it won’t happen.

So if Trump could conceivably steal the election in connivance with state and congressional Republicans and the Supreme Court, what could stop him?

First, unlike the Court’s Bush v Gore decision in Florida in 2000, it is not one state and a few hundred votes hanging in the balance in deciding the electoral college winner. It would instead require reversing margins of tens of thousands of ballots in at least three states, when many Americans have come to see Biden as the president-elect.

There’s also the matter of what the press could do, Fox News and other right-wing outlets notwithstanding: make it clear to all Americans who’d listen how illegitimate this usurpation of power would be.

Finally, part of it what would block this coup would be what all of us could do: taking it to the streets, despite potentially armed opposition; pressing powerful economic interests to see that they will be boycotted or otherwise see their business interests hurt if Trump seeks to steal the presidency; and persistently asserting that his victory would be an illegitimate seizure of power in violation of all that our democracy and justice system stand for.

Republican Self-interest to the Rescue

But after four years of Republicans caving to Trump and many more years of the Supreme Court crushing voting rights, principle won’t be the main force that wins the day. Rather, supplemented by the principled steps I just sketched, it would be Republicans’ self-interest in precluding a protracted, multi-pronged fight that could hurt more than help them.

For Republicans such as Senate Majority Leader Mitch McConnell, self-interest indicates that they’re doing just fine without Trump. Barring unlikely dual upsets in Georgia’s January 5 run-off, the Republicans retain Senate control. They’ve picked up seats in the House. They largely haven’t lost ground in state governments. They control the Supreme Court. They can stymie any major initiatives that Pelosi or a President Biden could put forth.

And the Republicans are actually in better position to retain Senate control and regain the House in in 2022 if Biden is in the White House. The parties of incumbent presidents usually lose ground in off-year elections. That pattern could prove even worse if Trump stays in office.

The logic extends to 2024. If you’re presidential hopefuls such as Senators Marco Rubio, Josh Hawley, Tom Cotton or Mitt Romney, would you rather run with Donald Trump in or out of the White House? Which possibility makes him less of a kingmaker, especially since once he’s out of office he could end up in prison? Which better undercuts his banana republic option of backing offspring Don Jr. or Ivanka for the nomination?

The case against backing Trump to the hilt makes even more sense since Biden is unlikely to run again, meaning that the Republican nominee would not be up against an incumbent.

Trump will remain a real force in the party even if he loses, perhaps even if he goes to jail. But he’s not in nearly as much control if he’s not in the Oval Office. And on a personal level, top Republican politicians probably despise our despicable Sociopath-in-Chief, even if they’re too cowardly to admit it.

The ultimate kingmakers, or course, constitute the Supreme Court justices. But does it really serve the justices’ institutional, legal and political agendas to continue Trump’s rule? The Court’s biggest source of power is its legitimacy.

In terms of that crucial legitimacy, putting Trump back on his self-styled throne is not in the conservative justices’ interest. Their ability to gut voting, abortion, consumer, environmental, minority, LGBTQ and many more rights is best served by obviating Trump’s counterproductive actions and distractions.

But…Cambodia, America and Maya Angelou

But as I consider how long a shot it would be for Trump to go this route – turning three state legislatures against their voters’ presidential decisions and obtaining Supreme Court buy-in for such a strategy – I turn to the haunting example of Cambodia. By virtue of a couple of human rights reports I wrote about Cambodian refugees in the 1980s, I’ve been engaged with and concerned about that country for my entire career.

In the wake of the massive Khmer Rouge genocide there in the 1970s and Vietnamese military occupation in the 1980s, the small Southeast Asian nation finally had a shot at democracy when a Vietnamese withdrawal and UN-brokered transition led to elections in 1993. It was the first of six such national votes conducted every five years, the most recent occurring in 2018.

Though a case could be made that the dominant Cambodian People’s Party and its autocratic leader Hun Sen won a couple of those elections somewhat legitimately, they have really clung to power through a fluctuating blend of corruption, repression and violence. All the while, many foreign aid organizations and governments (though to some extent not the United States) bought into the myth that the CPP and its leader Hun Sen would step down if defeated in a vote.

Those myths were shattered in 2018, when the CPP won a bogus election only after brutally crushing the opposition. It realized at that time that more subtle repression and corruption would no longer do the trick.

In truth, it was no shock that Hun Sen’s thugocracy would go that route if necessary. He’d been telegraphing it since 1993, when the CPP, falsely charging electoral fraud – sound like anyone we know? – refused to relinquish power even though it lost Cambodia’s first election.

When People Show You Who They Are…

Which brings us to a famous bit of wisdom credited to poet Maya Angelou: “When people show you who they are, believe them.”

Hun Sen showed us who he was throughout his reign.

So has Donald Trump, as well as his Republican Party sycophants who still support his callous claims that he won the election or that Biden should not be recognized as our president-elect. And though Trump’s crimes to date don’t nearly equate with those of Cambodia’s autocrat, the two are cut from the same venal cloth.

Which is how we get from Cambodia to America, via Ms. Angelou’s insight. Donald Trump has repeatedly shown us who he is. There is no low to which he won’t go if he can.

And I return to my previous post about how Trump could steal the election by again citing historian Timothy Snyder implicitly cautioning us about complacency in the face of potential tyranny. And I close this one by quoting someone I thought I’d never cite, conservative William Kristol and his recent anti-Trump warning:

A little alarmism in the defense of liberty is no vice.
Complacency in the defense of democracy is no virtue.