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- Incredibly, the Constitution as interpreted by Bush v. Gore (2000), lays out no limitation whatsoever on state legislatures as to the power to pull back (i.e., steal) the choice of electors from the voters.
A federal statute, 3 U.S.C. § 5, as interpreted by William Rehnquist, guarantees that the electors selected in the general election to represent a state will be counted in the Electoral College so long as they are selected under state laws that predate the election and are chosen at least six days before the Electoral College convenes on December 14, without specific requirements that they be chosen by the voters rather than state legislatures.
This is, in my opinion, both because of the idiotic basis of the decision in originalism, and because of the bald politics of that decision, which sped along the process of the delegitimization of judge-made precedent in this country, as commented upon below by John Paul Stevens in his dissent in that 2000 case.
So this would have to be litigated, in the newly stacked federal courts, no less.
The implications we have thus far heard discussed in the media – including in the excellent Atlantic piece yesterday – are merely assessments of the political viability of such an action.
As we should know by now after the Russian issue, Trump is an expert at plowing forward and getting Republican operatives and politicians to follow his lead, no matter how anti-democratic or mad, and getting away with it.
The silence thus far today in response to Trump literally saying “get rid of the ballots” and “there won’t be a transfer,” on the part of Republican governors, Secretaries of State, and state legislators, is the most chilling thing I have yet witnessed in the current struggle for the survival of American democracy.
“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
-Justice John Paul Stevens [Dissent] Bush v. Gore (2000)
I agree that the silence is deafening. My heart says that this is a result of shock and denial. My head says that this is recognition of defeat.
I think that no elected officials know what to say. Our entire political system and government, like our tax system, is based on an assumption of voluntary compliance. While paying taxes is required by law, the government has never provided enough resources to enforce those laws if a significant portion of the population started ignoring them. Our constitution and political system was not designed to withstand a concerted attack by an asset of a hostile nation who has the backing of a corrupted GOP.
The American political system has been dominated by greed and big money since at least the Reagan era, and the resulting vulnerability to corruption has always been its Achille’s heel. Mr. Putin recognized the weakness and exploited it.
I think there’s a better than 50% likelihood that the war is already lost, and that the evidence of that defeat is only slowly coming to light. This administration and GOP majority will not relinquish power. I think there remains a chance that Mr. Trump will be removed in favor of Mr. Pence once the outcome is certain.
There will be a continuation of power in January of 2021, whatever happens in November. Even if Mr. Trump is replaced by Mr. Pence, the GOP will remain in power and the newly constituted Supreme Court will validate whatever contorted argument is used to perpetuate the travesty.
Representative democracy in America is dead. The question now is what comes afterwards.
More from my favorite go-to site which always synthesizes this better than I can.
Also, even if Trump himself isn’t preparing for transition (and I’m convinced he says what he says to get attention), the White House is.
Finally, don’t assume Republicans are all on board.
Larry Lessig begs to differ…at least the power of the states to void an election that already occurred https://youtu.be/3l9_PW8dGG4
The thread-starter already reflects this limitation (emphasis mine):
A breakdown of states and state legislatures by party is available at “NCSL: National Conference of State Legislatures” (https://www.ncsl.org/research/about-state-legislatures/partisan-composition.aspx).
I haven’t dug into this yet to fold this map into other maps of EC votes and polling.
I’m quite sure that the GOP has been looking at this for some time — I haven’t seen a lot of analysis about this here (although Christopher has made some relevant comments).
I hope the Democratic leadership is doing more than just whistling past the graveyard on this.
Many of the likely close states with Republican legislatures who may be tempted to pull this stunt also have Dem Governors who will most certainly veto such attempts.
Indeed. I wonder how many of those vetoes can be overridden.
I also wonder what sort of legal stunts can be pulled in those states.
At the bottom there is a good thread in response to the Gellman piece. There’s also the matter that the Democratic House would not certify electors sent by state legislature that nullified its own popular election, nor would the voters of that state re-elect those legislators. Their fear or fealty to Trump has to be outweighed by a massive popular backlash to an outright stolen election.
This also makes Trump look more and more unhinged time suburban women who might hand GA, TX, and IA to Biden. As is his rabid fealty to the anti-abortion cause.
If the House fails to produce a president the Senate would, and I’m not sure if Romney or Murkowski would go along with a literal coup. If we cannot produce a president by noon on Jan 20th then Nancy Pelosi is president.
The off record operatives gave Gellman this plan since they knew this narrative would spread and normalize these actions and cover up the reality that 200k Americans are dead and Trump is down by ten points in seven out of ten national polls.
I have no doubts they will try and steal this election, but they can only do so if every single conspirator cooperates and the total acquiescence of a majority of Americans. I don’t trust the process, but I trust the people.
https://mobile.twitter.com/Teri_Kanefield/status/1308851838406610945
Plus it is the next Congress that steps in and that’s likely to be more Democratic. If the House deadlocks the Senate might still elect Harris VP and she will be acting President if neither Trump nor Biden has qualified (and even if it ends up Trump, Harris and not Pence remains VP!)
I don’t hear anybody suggesting that states will attempt to muzzle or change electors after the election.
The Atlantic piece and the piece above instead are saying that these legislators can either cancel the election or change the state law that governs what the electors can and cannot do.
If this is a Republican misdirection, then Bernie Sanders is falling for it hook line and sinker.
Did you see his speech this evening?
And Larry Lessig and many others are arguing states cannot do what he is proposing they do. I’m more worried about a judge throwing out “naked” ballots in PA today than what the PA legislature might do after the election. Again, Gov. Wolf would certify his electors like Jeb Bush did and that state legislature has enough votes to override that decision or strip him if that power. Ditto MI. Both states also passed laws to speed up the counting of ballots so it’s likely we know the results on election night. We will know whether Biden carries MI, PA, and AZ on election night and if he does it’s over for Trump.
I do worry more about voter suppression tactics and disinformation campaigns. I’m worried that young people and people of color read the Gellman piece and think voting is futile since the system is truly rigged. We have to be very careful in gaming out those scenarios at the Biden campaign to make sure it’s not caught flat footed like Gore’s. We also have to recognize that voter suppression is a much more realistic and worrying process. It’s a lot easier for Trump to suppress minority voters now and inflate the preliminary vote count than try and use constitutionally suspect mechanisms after the vote goes against him.
Current law holds unless/until its changed, and every state now chooses electors by popular vote. I just looked up the partisanship and Constitutions of states that may be questionable in terms of result. In WI, MI, and PA a 2/3 vote is required to override the Governor, which the Republicans don’t have. In OH, Dewine is a Republican, but not a blind Trumpist. If he vetoes it only takes 3/5 of both houses to override which Republicans technically (but barely) have. Keep in mind all I know is party affiliation and for the purposes of this thought experiment I am assuming strict party-line votes. AZ, GA, IA, and FL technically could with their partisan situation change the law, but it won’t be enough to get Trump to 270 with current projections (though very close for comfort). Finally we have to remember that the ultimate check is not constitutional structures, but the people. Don’t you think there will be holy hell to pay politically for any elected official who dares to deprive the people the say they have come to expect in presidential elections? No state has chosen electors by anything other than the popular vote since before the Civil War!
Another good thread on this. It’s really Toxic Republican propaganda we are spreading. Trump is trying to wish and hope he can Rebrand himself again as a winner.
https://mobile.twitter.com/AshaRangappa_/status/1308929151789924354
I used to be skeptical of some of these scenarios, but the more I think about what happened in Bolivia a year ago the more I think it is possible here. It’s widely assumed that the coup in Bolivia was engineered by the U.S., and the general contours (ie. discrediting late votes and then declaring the election invalid, leaving the military to install some right winger) resonate with some of the scenarios that have been suggested.
So that scenario would be far more difficult to pull off with our federal system of government and clearer constitution. For this scheme to work it would require retroactively overturning a host of laws and then inventing precedence out of thin air to justify them. I’m not saying that hasn’t been done for some other decisions, overturning voting rights for example, but there was a far more
legally plausible argument to make for that right wing decision. It’s not impossible, but it’s highly improbable.
The Roberts court just agreed with laws binding electors to the popular votes of their states, it would be really difficult for the conservatives who signed off on that unanimous decision to suddenly sign off on a state legislature ipso facto invalidating their popular votes and sending an alternative slate of electors. There are no swing states where the legislature and Governor are both Republican enough to allow for something like that and it seems unlikely it could survive a Supreme Court challenge. The Democratic House would just refuse to certify and state that did try and do this, likely to the benefit of Biden having a lead.
I don’t see Mike DeWine doing it or the pro-mail in ballot Republican Secretary if State in OH doing that. I don’t see how Democratic governors verifying elections in MI, WI, and PA would suddenly lose that power. The GOP doesn’t have enough votes and we already have the Supreme Court ruling that you cannot change election procedures in the middle of a campaign. How could they justify changing it ip so facto? Even a new justice would be alone in this regard at best.
What’s scarier is what Florida actually got away with, nullifying their own voters command to let ex felons vote. They found a creative loophole to disenfranchise them again. A loophole Bloomberg just paid off.
What’s scarier is the PA judge ruling on naked ballots. Luckily it happened early enough in the process that voter education can happen to hopefully prevent that from being a significant issue. PA and MI are counting early ballots ahead of time and Barr is trying to send DOJ agents to stop that.
So let’s focus on the actual voter suppression happening and leave the improbable scenarios on the backburner. At the end of the day, we lost our democracy if we fail to vote or stand up to have our votes be counted. In the unlikely scenarios Gellman lays out he forgets to mention mass movements of millions of voters striking and taking to the streets to demand every vote is counted. He forgets our allies or the UN possibly sanctioning this country unless we count every vote. So if Trump is really pushing an elector bank shot in late September, he must know his goose is cooked.
My understanding is that in most states, including WI, MI, & PA, the legislature is required by state law to select the slate of electors pledged to the winner of the popular vote in that state. What Trump seems to be setting up is the claim that the election results in these states are fraudulent well before they have had the chance to even be counted. I believe each of these states is likely to take several days to count mail in ballots, at very least. I am not sure under what kind of pretext Trump intends to argue that the republican legislatures have the authority to name the electors themselves, before their respective democratic Secretaries of State have certified the elections and named a winner But I think this is the issue likely to be before the Supreme Court – do state legislatures have the authority to determine the winner and name electors if they believe the results are/ would have been fraudulent? Would love to be corrected if I have this wrong.
Only if state law allows this and I’m pretty sure no states have such a law, so the law would first have to be changed, but certainly would be vetoed by the Dem Governors that all three states you mention have.