The Republicans’ bid to overturn the election is a full-scale emergency – and yet the Democratic strategy seems to be to pretend it isn’t happening
By David Sirota
The recent HBO film 537 Votes, about the Florida 2000 election mess, offers one overarching message: Democrats’ refusal to sound a clear alarm about the slow-motion heist in process ultimately let the election be stolen.
In that debacle, Democrats seemed to think things would break their way with well-honed arguments inside the cloistered confines of the legal system – they never understood how public-facing politics can play a role in what ended up being a pivotal political brawl outside the courtroom.
Now, 20 years later, the lesson of that debacle isn’t being heeded. Donald Trump and his cronies are quite clearly waging a public-facing campaign designed to create the conditions to pull off a coup in the electoral college process.
This is a full-scale emergency – and yet the Democratic strategy seems to be to try to pretend it isn’t happening, in hopes that norms win out, even though nothing at all is normal.
In the week since the election, Donald Trump and his Republican allies have waged a public campaign to call the election results into question – not just in the courtroom, but in the public’s mind. Their lawsuits and Attorney General William Barr’s recent memo are designed as much to to generate headlines as they are to win rulings and initiate prosecutions. Their tweets asserting fraud, and their high-profile promises of financial reward for evidence of fraud, are all designed to do the same thing.
Most ominously of all, Republican lawmakers in Pennsylvania, Georgia, Wisconsin, Michigan and Arizona are already insinuating the results may be fraudulent, even though they haven’t produced any evidence of widespread fraud.
Why is public perception so important? Because as the Ohio State University law professor Edward Foley shows in a frighteningly prescient 2019 article, legislatures could use the public perception of fraud to try to invoke their constitutional power to ignore their states’ popular votes, reject certified election results and appoint slates of Trump electors.
In an article that predicted almost exactly what has already happened in Pennsylvania, Foley imagined Trump seeming to be ahead at first, then losing his lead as votes are counted, then making allegations of fraud, setting the stage for this:
At Trump’s urging, the state’s legislature – where Republicans have majorities in both houses – purports to exercise its authority under Article II of the Constitution to appoint the state’s presidential electors directly. Taking their cue from Trump, both legislative chambers claim that the certified popular vote cannot be trusted because of the blue shift that occurred in overtime. Therefore, the two chambers claim to have the constitutional right to supersede the popular vote and assert direct authority to appoint the state’s presidential electors, so that this appointment is in line with the popular vote tally as it existed on Election Night, which Trump continues to claim is the “true” outcome.
The state’s Democratic governor refuses to assent to this assertion of authority by the state’s legislature, but the legislature’s two chambers proclaim that the governor’s assent is unnecessary. They cite early historical practices in which state legislatures appointed presidential electors without any involvement of the state’s governor. They argue that like constitutional amendments, and unlike ordinary legislation, the appointment of presidential electors when undertaken directly by a state legislature is not subject to a gubernatorial veto.
Foley notes how public-facing politics – outside the cloistered legal arena – could then come into play.
“It might be too much of a power grab. One would hope that American politics have not become so tribal that a political party is willing to seize power without a plausible basis for doing so rooted in the actual votes of the citizenry,” he writes. “If during the canvass itself, Trump can gain traction with his allegation that the blue shift amounts to fraudulently fabricated ballots – along the lines of his 2018 tweet about Florida – then it becomes more politically tenable to claim that the legislature must step in and appoint the state’s electors directly to reflect the ‘true’ will of the state’s voters.”
To be sure, pulling this off would be complicated.
Republicans would have to get not one but many of the five Biden states with Republican legislatures to try to ignore the popular vote.
Congress would also have a role to play in deciding which electors to recognize, which gives the House Democratic majority some leverage.
And it’s not clear that any of the maneuvers would hold up in court (though let’s remember: the supreme court now includes three Republican-appointed justices who worked directly on the Bush v Gore case that stole the 2000 election for the Republican party).
But this is quite obviously what the Republicans are aiming for – and they’ve basically said it out loud. Indeed, Trump’s son has promoted the idea of legislatures overturning the election, and so has Trump’s staunch ally Ron DeSantis, Florida’s Republican governor. Meanwhile, a Republican lawmaker involved in Wisconsin’s new election fraud investigation suggested his state’s popular vote could be ignored.
Supporters of Donald Trump pray as they protest the election outside of the Clark county election department in Nevada on Sunday. Photograph: John Locher/AP
This is why we’ve seen Republican officials and policies continue pretending that Trump didn’t lose the election, and presuming that there will be a second Trump term. This isn’t merely infantile behavior or an immature temper tantrum – it is part of a cutthroat plan.
They are trying to normalize the idea that regardless of how Americans actually voted, a second Trump term is inevitable because state legislatures and Congress will ultimately hand him the electoral college.
Where is Democrats’ call to action?
One big takeaway here should be that in the long term, the electoral college has to go – it has now become an even bigger threat to democracy, beyond just routinely throwing elections to the losers of the national popular vote. The system is being weaponized by a Republican party determined to thwart the will of voters.
In this particular crisis, a strong and serious response is needed.