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Sunday, September 27, 2020

How Democracy Might Fail

 A long article by Jeffrey Toobin in last week's New Yorker lays out in considerable detail what might happen beginning on November 3 to keep Donald Trump in the White House even though the plurality of voters in states with 270 or more electoral votes might have voted against him.  The most likely scenario begins with Trump declaring on November 4 that only fraudulent mail-in ballots deprived him of a victory in certain states--or declaring victory in states where he is ahead before such ballots can be fully counted. Trump might at least in theory be able to persuade states with Republican governors to stop counting such ballots, but only Florida, Arizona and New Hampshire among the swing states have Republican governors; Wisconsin, Michigan and Pennsylvania do not.  Thanks to gerrymandering, however, they do have Republican legislatures, and that opens up another avenue for Trump and the Republican Party. "Each State shall appoint, in such Manner as the Legislature thereof may direct," article II of the Constitution reads, "a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."  Many state legislatures reserved the power of appointing the electors rather than delegating it to the voters in the early days of the republic, and some continued to do so right up to the Civil War.  And lest anyone think that no 21st-century Republican legislature would dare take such a step, allow me to point out that in December 2000,. when the Bush-Gore election controversy was reaching its climax, the Republican-controlled Florida legislature was preparing to do exactly that--to call a special session to award the state's electoral votes to Bush if they had been unable to stop any recouts in the courts.

That would not, however, be the end of the matter.  The Constitution and relevant statues provide that the Vice President shall count the electoral votes before a joint session of the House and Senate on the sixth day of January--which now means that a new Congress will be in session.  The law governing this procedure and providing for the resolution of disputes was originally passed in the late 19th century, after several such controversies had occurred, most notably in 1876, when Congress had to choose between two competing sets of electors from each of three states, Louisiana, South Carolina, and Florida.  It appears to have been amended in 1948.  It provides that an objection to any state's electors by just one Senator and one Representative will create a controversy that each house must immediately consider in separate session, and provides guidelines for their decision.  Toobin or his editors apparently decided that the language of the law is too confusing to be interpreted, but I will attempt to do so.  Section 6 of the statute provides, critically, that the executive branch of the state government must certify the properly designated electors, indicating to me that the governors of Wisconsin, Michigan, or Pennsylvania could ignore attempts by their Republican legislatures to ignore the decision of the voters and appoint Republican electors. The same situation prevails in North Carolina, now rated as a tossup state. The governor's decision can under the law be overridden, but only by majority votes in each house of Congress to that effect.  Since the Democrats seem certain to control at least the House of Representatives come January, this is unlikely to happen. That provision seems relatively straightforward, but unfortunately, the law did not stop there.

We come now to the further passage in the law (see the link above) that seems to have been too much for Toobin and his editors.  After several readings over the last two months, I think that I have finally discerned its meaning.  Section 5 of the law allows each state to fix its own procedures for settling any controversy over the choice of its electors by law, provided that the law is passed before the election.  If that law is applied at least six days prior to the date specified for the meeting of electors--December 14, this year--their determination "shall be conclusive."  Section 15, however, once again assumes that such a determination might be challenged in one  of two ways.  In the first, some one might object that the proper state authorities have not made the choice, and in that case, both houses, will have to agree, separately, that their appointment was proper under the laws of that state, in order for them to be counted.  If they did not so decide, the state in question would lose its electoral votes, although a 270 majority would still be necessary to secure election by the electoral college. This provision, it seems to me, would enable the Democrats to challenge the result from a state whose legislature had arbitrarily awarded its electoral votes to Trump, and a Democratic House could invalidate (although not necessarily transfer) those votes.  We shall look later on how that is likely to affect the final count.

A second kind of controversy would arise if two different state authorities sent two competing sets of electoral votes.  In that case the two houses, acting separately, will vote to decide which set of votes is the valid one.  If however they disagree--as a Democratic House and a Republican Senate would almost surely do--then "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted."

Before getting once again into what might happen in specific states, may I say that I do not think there is enough civic virtue left in today's Republican Party, either at the state or national level, to prevent them from trying to give Trump an election that he has lost by any means necessary.  Dependent as they are on Trump for electoral power, on Republican contributors for their seats, and on Fox News to keeop their voters behind them, I think they will mostly do what the Trump campaign tells them.  I will be delighted to be surprised, but I think we have to plan for the worst-case scenario.  How bad is it?

There are no key swing states with Republican governors and Democratic legislatures.  (I happen to live in such a state myself, but Massachusetts is not in play.)  It seems, then, that under the statute, results certified by the Democratic governors of Wisconsin, Michigan, and Pennsylvania would be counted, even if a Republican Senate voted to reject them.  On the other hand, if Florida or Arizona submitted electoral votes for Trump, even though more votes had been counted for Biden, and a Republican Senate voted to accept them while a Democratic House voted to reject them, those states would lose their electoral votes.

We turn now to the electoral map.  As it happens, the predictions of one site, 270towin, tell us exactly what we need to know to make a prediction based on the analysis in the last paragraph.  Should Biden carry all solid blue states, plus Minnesota, Wisconsin, Michigan, Pennsylvania, Nevada (which has a completely Democratic state government) and New Hampshire, he would win with 278 electoral votes.  That means he would also win even if the Republican governor and legislature of New Hampshire awarded its four votes to Trump, or if a split vote of the two houses denied New Hampshire its electoral votes.  (I think they are the least likely Republicans to do so, but it's possible--and it's at least equally possible that Trump could win New Hampshire honestly.)  To put it bluntly, Trump cannot win the election simply by stealing Florida and/or Arizona.   He can only steal electoral votes in states whose governments are completely controlled by Republicans, and thanks to the 2018 elections, there aren't enough of them to get him over the top. 

We certainly can't rule out the possibility that Trump will win honestly.  The fivethirtyeight.com probability of a Biden win is up to 78%, but that's only 6 points higher than Hillary's probability on the eve of the 2016 election.  Yet the possibility of his winning dishonestly looks smaller than I thought it would when I started this post.  It seems to me that the best way to avoid a long drawn-out fight in which the above scenarios are played out is to stress the math that I have laid out, and to secure statements from the Democratic governors of the key states that they will not certify an illegitimate result decreed by their legislature. Trump will almost surely declare a stolen election and try to fight the result in any case, but many Republicans, I do believe, will be reluctant to go along, if they have realized that the odds are hopelessly against them.

I will be glad to revise any of this post iof any readers can convince me that it has serious logical or arithmetic flaws. 

8 comments:

Matthew E said...

(Apologies for not responding last time you responded to my comment; the moment had passed by the time I was ready to sit down and type something out.)

I don't dispute any of your analysis here, but I think it's all kind of beside the point. You're examining details and minutiae that only matter, basically, to Democrats. Trump is not a sophisticated legal thinker and neither are most of his people. Trump's position is that he is the winner of the upcoming election. Whatever the results are, he's going to claim victory and dismiss any evidence to the contrary. He doesn't care about all this stuff about governors (although he may try to make momentary use of it). So if his opposition is arguing about governors and electors, all he has to do is sit in the White House and reject all of it until everyone gets tired of the argument and lets him be President forever. And the rest of the GOP will support him all the way, because anybody who wouldn't has already broken with the party.

(And, as I will always say in these conversations, that does not mean that Trump is unstoppable! He's very stoppable, but he will not be stopped by laws or rules; he can only be stopped by people. It's going to take human people sticking their necks out and personally preventing him from seizing further power to get him out of there. This is hazardous work, because any people who do this will certainly be targeted for death by the far right for the rest of their lives, and their names will live on in infamy forever in right-wing circles. But it'll be necessary anyway.)

(Also as I will always say, there's no point in looking to the armed forces or Secret Service for help, because they don't want to get "involved in politics" and be accused of being the Praetorian Guard. They will allow the politicians to decide who's in charge and follow whoever that is. And if Trump is physically in the White House then it's not up to them to remove him, they will say... but they'll put the hammer down on any citizens who try to take action.)

(It's not a good situation.)

I happen to think that there's no way Trump can win a fair election. I don't think he has anywhere near the numbers. Trump has already started to kick up dust to obscure this fact though (through voter suppression, general lying, and his shenanigans with voting-by-mail, plus other stuff I'm probably leaving out), with some aid from the coronavirus, and the Democrats and the press seem happy to play along with him.

The article you cite, and this one (in The Atlantic) do lay out some details, but I see their value as more of a big-picture warning: the problem is not that Trump won't concede, or that the details of Biden's victory will be too subtle to isolate; it's that Trump is going to claim that he has won and nobody seems to have enough authority to say that he hasn't and make it stick.

Biden is going to be placed in a tough situation after the election: he can a) pursue his victory and try various things to force Trump out, which, if he sticks with it, will certainly lead to bloodshed, probably widespread, or he can b) decide that it isn't worth tearing the country apart and concede the White House to Trump. (My take: it is worth it; the country is already torn apart.) And if he picks b), good luck trying to have a 2024 election worthy of the name.

Bozon said...

Professor
Wonderful analysis of the oddities of the system, then and now.
This was especially interesting for me in connection with recent posts I did re the beginnings of the Republican Party. A reference to those posts, is below.

"...Many state legislatures reserved the power of appointing the electors rather than delegating it to the voters in the early days of the republic, and some continued to do so right up to the Civil War. And lest anyone think that no 21st-century Republican legislature would dare take such a step, allow me to point out that in December 2000,. when the Bush-Gore election controversy was reaching its climax, the Republican-controlled Florida legislature was preparing to do exactly that--to call a special session to award the state's electoral votes to Bush if they had been unable to stop any recouts in the courts...." DK

LINCOLN REPUBLICAN PARTY SECRET SOCIETY IN BROAD DAYLIGHT ARENDT KOYRE BOBBITT FONER

All the best,

JRW said...

I would suggest that many of these scenarios would b e even less likely if the Democrats had made more of an issue of the 2000 election in Florida. Florida governor and legislature has shown again recently that they don’t care about how the people of Florida vote

David Kaiser said...

No, Matthew, we are not so far gone as that. If the counting in Congress finds on January 7 that he has lost, that's that. He will have to leave.

Matthew E said...

I hope you're right. But I don't see it. And I hope someone down there has a Plan B that they're ready with. Plans C through M wouldn't hurt either.

Bozon said...

Professor

I don't like to be a fly in multiple ointments at once, but while not agreeing with Matthew, and while agreeing with you absent judicial interventions at all levels, it might be that judiciaries, here or there, state and or federal, all along the way, will have a powerful if not decisive say in any final presidential outcome.

It was not always so, but judicial activism has only gathered strength over the long expanse of time since 1776.

It is not a development I revere.

All the best

David T. said...

Trump is going to win by enough of a margin that all of this will be a non-issue. Furthermore, it is likely that the GOP will also win control of the House. As a matter of fact, the upcoming potential GOP control of the House will serve to cancel out any cries that Trump didn't win fairly.
If you think Biden is a sure shot, I have a Hillary Clinton candidacy to sell you on! The Dems have gone the route of controlling the narrative through capture of the MSM. The problem is, this blinds them to the underlying realities and dynamics of the electorate. It killed them in 2016 and it will kill them this year too. It's like painting turds green and calling it grass. I think they get this on some level which is why they are already screaming about the election being unfair.
Anyway under any sort of contest, this will likely end up in the SCOTUS. Trump knows this and the potential for a 4-4 split on who will be the next president, so of course he going to fill RBG's vacancy. It's suicide for him not to, strategically.
All of this Dem hand wringing is predicated on the theory that most Americans hate Trump and want him out. That assumption (which I think is false) deserves serious re-evaluation which it will never get.

Bozon said...

Professor
I will return to a comment I made on one of your prior posts, I forget which, speculating that both candidates might not last, for one or another reason, until election day, and had wondered what if?

I know you aren't a fan of advocating from a perspective of counterfactuals, revisionism, arguing against the past, calling the judgment of history on the carpet, but nevertheless.

This is boots on the ground in the near future, so we are free to imagine.

All the best