Blueprint for a Stolen Election

Issue 259

And how to stop it.

John Tarleton Oct 30, 2020

On Oct. 8, 13 far-right extremists were indicted by federal and state authorities for plotting to kidnap Michigan Gov. Gretchen Whitmer, put her on trial and execute her. Whitmer, a moderate Democrat, was elected two years ago following eight years of Republican misrule that saw tax cuts for the rich and poisoned water for the people of Flint.

Trump quickly went on the attack denouncing Whitmer. At an Oct. 17 campaign rally in Muskegon, Michigan, he led a crowd of thousands in “Lock her up!” chants directed at the governor.

Like so many other Trump-era outrages, the Whitmer kidnapping plot has faded into the background as one shocking new incident surpasses another. Yet with Election Day fast approaching and concerns growing about what will follow it, the Whitmer incident is worth keeping in mind.

The actions of the Michigan coup plotters were an outlier even by Trump-era standards. But this incident speaks to a larger trend that is now commonplace in Republican circles: A contempt for democracy and a refusal to accept election results that don’t go their way. The playing field is already tilted in their favor (see below) thanks to a Constitution composed 230 years ago by wealthy merchants and slave owners.

The Republican Party has been trending in an increasingly anti-democratic direction over the past 20 years or more. And at this point, they are barely trying to hide it. During the Oct. 7 vice presidential debate, Utah Senator Mike Lee smugly tweeted, “We’re not a democracy.”

But would the Republicans really go all the way and blow up the imperfect democracy we still have to install Trump in the White House for a second term?

The temptation will certainly be there. Trump will likely hold a large lead in the national vote on Election Night as well as in several key swing states due to the preference of pandemic-wary Democrats for mail-in voting. The prospect of the Republicans jumping out to an early lead is referred to as the “red mirage.”

Trump will almost certainly try to use the red mirage on Election Night to claim an overwhelming victory while disparaging millions of still-to-be-counted mail-in ballots as fraudulent, as he has been claiming for months. Large parts of the right-wing media echo chamber will likely amplify his message.

If fast-counting swing states such as Florida, North Carolina and Texas flip for Biden on election night, Trump will be headed for a landslide defeat that he and his diehard supporters will find difficult to overturn. But what if Republican voter suppression efforts (or a runaway pandemic) drive down voter turnout in big cities such as Philadelphia, Phoenix, Detroit and Milwaukee that are crucial to beating Trump in key swing states? Or, what if court challenges lead to large numbers of mail-in votes being held in legal limbo or disqualified?

The much-anticipated “blue shift” that is expected to come with the counting of mail-in votes could be short-circuited. From there, things could get messy fast.

Should this happen, a broad-based mobilization of anti-Trump forces that goes far beyond the usual suspects would need to take to the streets quickly and persist for as long as necessary (see pages 12-13). Counting on the legal system alone would be folly.

Illustration: Leia Doran. Click here for a larger version.

Still, it helps to understand the constitutional processes that could unfold and how the Republicans have gamed the counter-majoritarian features of our nation’s founding document to their benefit. These advantages could be deployed to give Trump a narrow but clear path to a “victory” that would convulse this country like few events in its history. Here’s a rough blueprint.

ELECTORAL COLLEGE: Each state’s number of electors is equal to the number of its congressional seats plus its two Senate seats. This gives greater weight to sparsely populated rural states. Worse, the half dozen or so “swing states” that will decide who wins an Electoral College majority are more conservative than the population as a whole. This is becoming more pronounced over time. In 2000, George W. Bush lost the popular vote by a half a point but won the Electoral College by 271-266 over Democrat Al Gore. Hillary Clinton won the popular vote in 2016 by 2.2 percent and lost the Electoral College 304-227. This time around it appears Joe Biden will need to carry the national vote by around four to five points to avoid Hillary’s fate in the swing states — and that’s before any vote suppressing shenanigans begin. A week out from Election Day, Biden’s lead in the national polls hovers between seven to nine points.

SUPREME COURT: This is the single most anti-democratic institution in our society. In December 2000, five Republican-appointed justices shut down Florida’s recount in Bush v. Gore, handing Bush a 537-vote victory in the Sunshine State and the keys to the White House. As president, Bush would later firm up the court’s conservative strength by appointing Chief Justice John Roberts and Justice Samuel Alito. They in turn have provided key votes in a series of 5-4 verdicts that have gutted the Voting Rights Act, overturned campaign finance laws, validated Republican-backed voter suppression laws purporting to address the non-existent threat of voter fraud, refused to bar gerrymandering and have been sympathetic to GOP efforts to make it harder for people to vote during a pandemic. With Amy Coney Barrett joining the court a week before Election Day, the court’s right-wing tilt has become even more pronounced.

SENATE: The equal representation rule enshrined in the Constitution gives each state two senators, which once again favors sparsely populated rural states that lean more conservative than the country as a whole. The 50 senators who voted in 2018 to confirm Brett Kavanagh to a lifetime seat on the Supreme Court represent 44 percent of the people in this country. These days Senate Republicans can’t be bothered to pass a second coronavirus relief package while millions of Americans slide into poverty. But, they have used their numerical advantage to stuff the federal courts with 200 young right-wing ideologues who will be around for decades thanks to the lifetime appointments conferred by the Constitution.

STATE LEGISLATURES: While voters troop to the polls to decide which candidate will receive their states’ electoral votes, Article II, Section 1, Clause 2 of the Constitution gives state legislatures the power to decide who will receive a state’s electoral college votes. No state legislature has chosen a slate of electors since the 19th century. However, the Republican-dominated Florida state legislature was prepared to do so in December 2000 if the Supreme Court had not intervened in Bush’s favor. If Trump and his supporters manage to create enough uncertainty about the election’s outcome, lame duck Republican-dominated legislatures could step in to resolve the matter to their liking. In Pennsylvania, three top leaders of the state’s Republican Party told The Atlantic’s Barton Gelman that they had discussed direct appointment of electors.

REDISTRICTING: So how is it the Republicans control the state legislatures in the major swing states when they got wiped out in the “Blue Wave” election of 2018? Back in 2010, the Republicans won big across the country riding a wave of anti-Obama sentiment. This coincided with the once-a-decade practice of redrawing legislative districts based on Census results. In state after state, the Republicans remade the electoral map to pack as many Democrats into as few districts as possible. Known as gerrymandering, this practice dates back more than 200 years. But where once it was a rough art, the Republicans have since turned it into a science using the latest high-tech tools to guide their scalpel. For example, Wisconsin Democrats swept all their statewide races in 2018 while their State Assembly candidates received 53 percent of the total vote in those races. However, the Democrats only won 36 of 99 Assembly seats.

CONTINGENT ELECTION PART 1: Congress has the final say in a presidential contest. When the new Congress convenes in early January, it will meet in a joint session to certify the Electoral College results. This is normally a formality. But if the Democrats hold the majority, they could reject electoral college slates chosen by Republican state legislatures. If no candidate wins an electoral college majority, the election would then be decided by the House of Representatives. This is known as a contingent election. It would seem like a slam dunk for the Dems given their clear majority in the House. But, that would be too simple.

Under the 12th Amendment, the House would use a state caucus system that gives each state delegation one vote. There hasn’t been a contingent election since 1824, when second place finisher John Quincy Adams prevailed. Thanks to their small state advantage plus the gerrymandering performed by Republican state legislatures, Republicans currently control 26 state delegations in the House, the Democrats control 23 and one state is equally divided. The outcomes of a handful of little-noticed House races this year could make the difference in which party controls the majority of state delegations and in turn decides whether Trump or Biden is the next president.

CONTINGENT ELECTION PART 2: Under the 12th Amendment, the vice presidency in a contingent election is decided by the Senate by majority vote. Depending on which party controls the Senate, Kamala Harris could be chosen as Donald Trump’s vice president.

This all sounds like a fever dream, an alternate reality that surely we will never step into. There are level-headed voices that say the same.

Conservative New York Times columnist Russ Douthat says Trump yearns to be a strongman but is more of a “noisy weakling” than a tyrant in waiting. Writing in The New Republic, the Brennan Center’s Walter Shapiro argues that Trump’s shock 2016 victory has left liberals and progressives mentally disordered and prone to anxiety about threats that don’t exist.

Still, when was the last time the Republicans didn’t push the rules as far as they possibly could to grab more power even if it defied any notion of fair play or respect for norms? Exactly.

For reasons of ego and personal legal jeopardy, Trump and his family have plenty of reasons to fight it out. His base of white grievance voters sees a rapidly changing country. They surely know that Trump’s fluke 2016 victory gave them a chance to restore “the white man’s republic” that won’t likely come their way again. The Republican establishment will have its finger to the wind but would probably be okay with dumping Trump’s legacy on Biden, with an eye toward scapegoating him for the hard times ahead and returning to power with a vengeance in 2022 and 2024 sans Trump.

Should Biden and the Democrats prevail, they must move quickly or the power imbalances described above will reassert themselves before long and allow the Republicans to permanently lock in minority rule through their control of the Senate and the Supreme Court. Here’s a quick action plan:

• GET RID OF THE SENATE FILIBUSTER (which isn’t in the Constitution) and pass a major coronavirus economic relief package with a strong Green New Deal component that provides good-paying jobs to millions of out-of-work Americans.

• PASS A NEW VOTING RIGHTS ACT to replace the one that was eviscerated by the Supreme Court in 2013.

• ADD NEW STATES, starting with Washington, D.C. and Puerto Rico that would lean Democratic when voting for their U.S. senators.

• EXPAND THE SUPREME COURT by at least four seats. This will make a difference on many crucial issues, especially on voting rights. If left intact, a conservative Supreme Court majority will continue to devastate voting rights to the benefit of their GOP allies. The Constitution says nothing about how many Supremes there should be. Nine is just a long-standing norm. And we know how the Republicans feel about norms.

That’s hard ball, the only game the Republicans understand or respect. There will be concern trolling about the importance of preserving bipartisan comity. But if a Biden administration takes a progressive turn (a big if, no doubt) and governs well for the large majority of people who want to see the government acting on their behalf during a crisis, Republican whining about “court packing” won’t take them very far.

If given a chance in 2021 and they fail to act, the Democrats could make Mike Lee’s taunt an irreversible reality. But first things first. Let’s do what it takes to oust Trump and his gang from power. After that, new horizons will open up for us to run toward.

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