In 2016, Michelle Obama famously advised Democrats how they should respond to Republican hardball political tactics–“When they go low, we go high.” Wise and highly ethical advice but since then, Republicans have regularly flaunted rules and norms that had long been taken for granted and Democrats have been caught up short or uncertain about how to counter those tactics.
As we approach November 3 and the prospect that Republicans may try to undermine the election’s legitimacy before all the votes are in, the question of whether Democrats will adhere to Michelle Obama’s maxim grows more pressing. Indeed, the fate of American democracy may ride on their willingness to stand tall and fight like Republicans.
One Republican strategy involves President Trump’s campaign seizing upon anticipated delays in vote counting and challenging vote-by-mail. The President’s allies may try to enlist Republican-controlled legislatures in swing states to appoint Trump-friendly electors in advance of a final determination of the election’s results.
Their objective is to favor in-person voters, who are likelier to vote for Trump, over those mailing their ballots or placing them in drop boxes. They want to prevent a “blue shift” of the kind seen in the 2018 congressional election when vote counting went on after election day and yielded greater success for the Democrats.
Favoring some voters over others, merely based on the method they use to cast their vote, violates the 14th Amendment’s equal protection guarantee as the Supreme Court declared in 2000 in Bush v. Gore when it ended Florida’s recount. But such legal niceties are unlikely to trouble Republicans who readily cast aside inconvenient precedents even of their own creation, as they did with the so-called “McConnell rule” that the Senate should not confirm Supreme Court nominees during an election year.
In the aftermath of the 2000 Supreme Court ruling, then Vice President Al Gore went “high” when he conceded defeat and urged his supporters to respect the Court’s determination.
In addition, as President of the Senate he overruled a challenge to Florida’s electoral college vote and dutifully declared George W. Bush President.
This year, Democrats in states with Republican-controlled legislatures may face premature appointments of electors by those legislatures. Democratic electors in those states must steel themselves to defy such an action. On December 14 (the date set by the Electoral Count Act of 1887 for electors to come together and vote) they should support Joe Biden and Kamala Harris if the vote tally then shows that Biden and Harris won in that state.
They will have the law on their side. Electors appointed prior to the completion of vote counting, and the resolution of any challenges, cannot qualify for the Electoral Count Act’s “safe harbor” provision which guarantees that their votes will be accepted And premature appointments by Republican-controlled legislatures will violate state law, let alone federal law and pertinent provisions of the U.S. Constitution, including most notably the Equal Protection Clause.
As noted in Bush v Gore, a state’s determination shall be “conclusive” only if made pursuant to a law “made prior to election day” by which the “state legislature has provided for final determination of contests or controversies . . . .”
Moreover, the Electoral Count Act requires that each state’s chief executive certify the appointment of electors only if made “in pursuance of the laws of such State providing for such ascertainment . . . . .”
Here is where Democratic governors will have to stand tall in order to defend democracy.
No matter what their legislatures do, the governors of battleground states like Pennsylvania, Wisconsin, Michigan, and North Carolina are free to communicate to Congress the votes cast by Democratic electors if they reflect the preference of the greatest number of voters in their states.
If they do so, this will not be the first time that Congress has been called on to choose between more than one set of electors. It happened following the 1960 election when Congress had to choose between two different sets of electors from the state of Hawaii.
In fact, the Electoral Count Act expressly contemplates that there may be more than one return from the electors of a state submitted to Congress. Should that occur, Congress may determine which, if either, list of electors to accept.
The Act provides that “those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State.”
Were Republicans to try to prevail by disregarding millions of votes cast by mail, Democrats must be ready to stop them. Whatever the Republicans do, sending forward the votes of a slate of Biden-Harris electors will keep the issue of who is the rightful winner of the presidency before Congress and the American people.
And, if Democrats gain control of the Senate and retain their House majority in the November election, they will be in the position to thwart Republican efforts to reelect Trump by certifying electors prematurely. But the political blowback of doing so will be enormous.
If the two houses of Congress do not agree, as would likely occur should Republicans retain control of the Senate and Democrats of the House, and states present two slates of electors to Congress, the law provides that the votes listed on returns certified by the governors are the ones to be counted.
This is why the willingness of Democratic governors to forward a slate of electors different from those designated by their state legislators is so important. They must plan now to stand up to what will undoubtedly be a concerted campaign to intimidate them.
Referring to the Republicans’ style of politics, former Attorney General Eric Holder rightly observed that, “It is time for us as Democrats to be as tough as they are, to be as dedicated as they are, to be as committed as they are.”
If Democrats follow Holder’s admonition, they will have democracy and history on their side. They will not be playing “low”—on the contrary, they will be protecting the right of Americans to cast their votes with confidence that they will all be counted in determining who be the next President.
