Wouldn’t the States Have the Receipts?

We’re right to worry about whether the Republican Party as an organization would sanction executing the plan outlined in this Newsweek opinion column. I have no doubt in my military mind that Donald Trump would do anything he could to stay in power, and that the Conservative movement (defined as the GOP and associated think tanks and interest groups) would do anything to keep a conservative in power. If those interests align and leaders see a unique opportunity, an attempt to establish a Presidency that lacked popular support is not out of the question.

I’ve written before about the Republican Project as I see it: a long-term conservative effort to capture the legal institutions necessary to keep power without having to bother assembling a coalition that can win elections, and block progressive legislation when they can’t. They would use these institutions to protect friends and hurt enemies, and to uphold orders restricting the right to vote while blocking local rules that would protect it. Once in control of these institutions, conservatives would use that control to protect their power if possible.

As I read the Newsweek scenario, it boils down to this: Biden wins the popular vote as well as the Electoral College on the strength of wins in four swing states which all have GOP legislative majorities. Trump and the GOP establishment challenge the result arguing that counterfeit ballots printed by China (presumably an anti-Trump Chinese intelligence operation) made the difference in those four states. Trump declares a national emergency and a national security investigation, which delays appointment of their Electors. Neither candidate assembles a majority in the Electoral College and the House, with its majority of GOP state delegations, would decide the election in favor of Trump.

Not impossible, and Democrats must prepare for anything. But (as I suppose comes with the “500 word op-ed” territory) this essay glosses over quite a few complications that make it a very unlikely scenario. I see a few issues with the idea that “These election results don’t count because Chinese counterfeit ballots” argument would keep Trump in office despite a popular and Electoral College vote for Biden:

  1. Any investigation into election security based on a claim of ballot counterfeiting would begin in the States. Such a claim would generate hand recounts that would look for a variety of anomalies (such as two votes from the same voter, or a ballot from someone who isn’t registered to vote, doesn’t exist, or has died). It would not take long for States to know for sure whether counterfeit ballots were counted, and if so how many. Physical objects like counterfeit ballots either exist or they don’t, and I wonder what those making the claim do when no fake ballots turn up.
  2. Any national security investigation into counterfeit absentee or mail-in ballots would necessarily reach every State. Even states with clear results would want to make sure. Given the current state of things we can expect more than four states to swing or try to, a list that might include Florida, North Carolina, Ohio, Iowa, and even Georgia or Texas. I should think we would check every state to make sure no fake ballots of any kind made it through the count. More than four states would have uncertain results, in other words.
  3. Even in the unlikely (I think) event Barr and Trump could delay and obfuscate in a way that keeps the result in doubt, State election officials certify these results, and if Trump’s DOJ tries to stop them from certifying a result, their State legislators have every incentive to appoint Electors based on their own investigations and finger in the political winds. They can choose them at any time, and no Federal power could stop them.
  4. The 12th Amendment specifies that “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;…” Unless a third party candidate won a state, this could happen only in case of a tie. The four states in Wirth and Rogers’ piece would not have chosen Electors, so their number would not affect the number needed for a majority. Without these 57 Electors appointed the number to win is 241, and either Biden or Trump would get at least this number of votes. A tie is not possible. In the absence of faithless Electors, which the Supreme Court just ruled States can sanction, this particular scenario with these four States could not throw the election to the House of Representatives.
  5. Sending the decision to the House might not work in any event, given that that House elections would be as much up in the air as the one between Trump and Biden. So would any elections for Senator, Governor, State legislator, or dog catcher. Questioning the validity of an election based on a claim that would create mountains of physical evidence in the form of counterfeit absentee ballots seems less than optimal.
  6. Recent public statements from military leaders, including the senior retired command level officers, suggest dissatisfaction in the ranks. Remember, the Defense Department arguably runs the most integrated and diverse organization in the US. Today’s senior military leaders were the first to serve after Vietnam, and they’ve spent their careers rebuilding its reputation and trust among Americans. This cohort of American military leaders did this through deployments to defend Kuwait and end ethnic war in the Balkans and the War on Terror and The War Based on Lies. They are proud of the fact that Americans don’t spit on veterans any more – they buy them beers and hot dogs at football games. US military leaders may be reluctant to give all that up by taking sides in what amounts to a race war.
  7. Response from corporate America, including American billionaires and other one-percenters, also matters. Volatile markets don’t help the people who control capital, and in fact put a lot of their wealth, to the extent it depends on confidence the the US economy and political system, at risk. The race war some work to incite would not help the tech industry sell more phones and tablets and computers, and CEOs know this.

My intent here is not to suggest that we can take for granted that we’ll have an election in November that somehow resembles those we’re used to. The enemies of American democracy will work to keep that from happening. Trump and his GOP cult will sow chaos and doubt, and attempt to use the institutions they’ve captured to hold power, whatever the popular will. Wirth and Rogers rightly worry about the resiliency of American democracy – agents both foreign and domestic who want tear it down because it threatens white supremacy, corporate profits, and religious bigotry will use disinformation, hacking, and intimidation to do so.

But the Constitution and statutes are clear on how this goes, and when we game these things out we need to think through what the legal process will look like. States resolve disputed elections because they control the functional apparatus – they would have any fake ballots in hand – and because the Constitution gives them that power. Any “national security” investigation into Chinese ballot counterfeiting would necessarily begin in the States. In the end, no Justice Department opinion that the President can exercise emergency powers changes the power of State legislatures to choose the President through the Electoral College. It just doesn’t. If American democracy ends this year, it won’t be this way.

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