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.