Trump’s Coup Failed, But He Gave Republicans a Road Map to Ending Constitutional Democracy…Soon

Posted in: Politics

For the last four and a half years, I have been predicting that Donald Trump would never leave office. Today, he did. Shortly after Election Day, I wrote here on Verdict:

I am scheduled to publish a column on January 21, 2020, which means that I will be writing it on January 20, Inauguration Day. If President-Elect Joe Biden becomes President Biden on that day, I will publish a column in which I eat a lot of my own words. If not, an I-told-you-so will be unnecessary and pointless.

I am more than happy to acknowledge that my worst fears were, in the end, averted. I would much rather be wrong than live under a dictatorship. Even so, the events of the last two-plus months added up to a very close call. Indeed, I wrote this at the end of that column:

Nor is there time here to talk about the possibility that Trump will encourage his supporters to resort to domestic terrorism to keep him in office. Those possibilities are frightening, and they are very real.

The last thing I want is to be writing an I-told-you-so column on January 20. I sincerely want to publish a “What went right?” column that explains why I was overly gloomy. The path from here to there, however, is by no means certain.

And what a path it was! There were, as there always are, contrarians who mocked those of us who had been warning that things could go very badly. One such pundit was quoted in November as follows: “What was predicted: mass election violence, chaos, and the end of democracy. What happened: rage tweeting, comical lawsuits, and an otherwise fairly robust voter turnout.”

Presumably, that cynic and others were chastened by the pro-Trump terrorist riot on January 6 in Washington, but let us put that ugly chapter aside for purposes of discussion. Even without the White supremacists storming the Capitol, what we saw in the post-election period was the closest near-miss that one could imagine in terms of threats to our constitutional order.

Worse still, even as Republicans finally begin to distance themselves from Trump, they now have in front of them all of the building blocks necessary to impose one-party rule in the United States within the next four years. Without swift and decisive action by Democrats and everyone else who thinks that honest political competition is foundational to our republic, we could soon see a Trump-less Trumpian autocracy take hold in this country.

How Close Did We Come?

After a near-miss, it is common for some people to respond with bravado: “Oh, come on, nothing happened! What were we all so worried about?” As a logical matter, because we cannot re-run history to see what might have turned out differently, we can never know with certainty that we actually were on the precipice of disaster.

But what we saw in late 2020 and early 2021 is best analogized to an automobile with iffy brakes careening down a winding canyon road, accelerating as the car tilts up onto two wheels, with death averted only through luck and just-in-time steering away from disaster. This was not a drill, and the danger was not at all exaggerated.

How do we know this? Consider all of the times that things could have gone the wrong way. The results in Michigan were certified only because one out of two Republican canvassers in Wayne County stood up and did the right thing. Both Michigan’s and Pennsylvania’s Republican legislative leaders were pressured to override the will of their own voters and instead appoint pro-Trump electors, and they surprised Trump (and me, to be honest) by refusing.

Most famously, of course, Trump and his parasites put intense pressure—including both pleading and issuing threats of violence—on state elections officials in Georgia. Those state actors hardly have clean records when it comes to running fair elections or making it possible for all Georgians to vote, but they did at least stand tall when it came time to follow the current election laws—laws that they themselves had written in ways to benefit Trump and other Republicans. When it turned out that their pre-election manipulation was not enough, they did have the decency to say, “We tried to steal this election for Trump fair and square, but even we have our limits.”

The judges who rejected the endless lawsuits also did the right thing, but they actually had an easier time of it. After all, ruling in favor of evidence-free legal challenges in which Trump’s lawyers could not even figure out what they wanted to argue is hardly a close call. Even so, Trump clearly believed that “his” judges, especially on the U.S. Supreme Court, would rule in his favor. It is a good thing that those jurists did not decide to color outside the lines, with so much at stake.

But in the end, only a tiny number of previously unknown people stood in the way of Trump’s effort to change swing-state election outcomes in his favor. If even one of those actors had crumbled under pressure, other dominoes might well have fallen very quickly.

Even if I were being overwrought in my description of how close we were to disaster, however, what matters at this point is that the events of the past few months have shined a light on all of the weaknesses in our constitutional and legal structure regarding elections. No matter how close we actually came to plummeting into the canyon, we will have to take that ride again very soon. We should recognize and address the dangers now, while they are still fresh in our minds.

All of the Ways That Presidential Elections Can Be Stolen

This election—indeed, three of the last six elections—has taught us that the Electoral College is a huge problem. Only thirty or forty thousand votes in key states in 2016 allowed Trump to win, and he would have won again in 2020—despite losing the popular vote even more decisively—if roughly that same tiny number of votes had swung his way in Arizona, Georgia, and Wisconsin. Among its many other problems, the Electoral College makes non-close elections stealable, even when only a few states have narrow outcomes. (Remember that Florida in 2000 was decided by a final count of 537 votes out of almost six million votes cast.)

And if we are never able to end that anti-democratic institution (which, we should remember, was added to the Constitution as a sop to pro-slavery states), the 2020 experience shows us that there are far too many easy ways for state-level Republicans to steal elections in the future. The same Republican officials in Georgia and elsewhere who stood firm against Trump, after all, are already frantically trying to change their laws to suppress even larger numbers of likely Democratic votes.

Perhaps the most cynically partisan moment that I witnessed came from the Georgia elections official who had denounced Trump and the two now-defeated Republican U.S. Senate candidates for putting Georgia’s elections officials in physical danger. In a subsequent interview that same day or a day later, he said that he nonetheless still wanted those candidates to win their runoff elections, because they are Republicans. Apparently, even having been targeted for violence by one’s own candidates is not enough to shake Republicans from their party-above-country habits of mind.

But it is worse than “mere” voter suppression. As I noted above, Republican legislators in various states were pressured to ignore their own voters and instead help Trump to carry out a bloodless coup. They did not do so, only because they felt honor-bound to follow their states’ laws as currently written.

Again, it is wonderful that they did not cave to the pressure in 2020. In addition to trying to suppress non-Republican votes, however, these legislators can also change their states’ laws in ways that will make it legal to override the voters in their states in future presidential elections.

For example, a state could adopt a new law that would empower the legislative leaders of both houses to “investigate” claims of voter fraud and, if they just so happen to find anything suspicious, appoint electors based on what they think the true vote would have been.

Recall that the U.S. Constitution gives states the power to determine how to choose their electors. Any given state can, in advance, go so far as to simply not hold a popular presidential vote. Because that would be heavily criticized, however, the alternative would be to appear to hold an election but to set up legal trapdoors that allow state-level Republicans to intervene—in a way that is completely legal—and hand the election to their party’s candidate.

My example in the paragraph above (empowering Republican legislative leaders to choose electors after claiming fraud) by no means exhausts the possible ways in which state laws could be changed to allow Republican officials to nullify votes. They could easily make it unnecessary to steal the election in the ham-fisted ways that Trump demanded.

And because the U.S. Supreme Court has repeatedly refused to prevent or limit gerrymandering at the federal or state level, even competitive swing states are dominated by Republicans in their state legislatures. For example, Florida’s current Republican governor won his statewide race by an achingly narrow margin, but the most recent session saw Republicans with margins of 23-17 and 73-47 in the two legislative chambers. Wisconsin, which currently has a Democratic governor and swung to Biden in the 2020 election, had statehouse margins of 19-14 and 63-36. There are similar not-close margins favoring Republicans in the state legislatures in Michigan, North Carolina, and Pennsylvania.

If any of those states that currently have Democratic governors elect Republicans in their next elections, they can join Arizona and Georgia in passing new election laws that effectively allow future Republican presidential candidates to turn to state-level Republicans to install them in the White House.

Even worse, if the U.S. Supreme Court follows its apparent druthers and validates the “legislatures-only” theory of appointing states electors, Republicans would not even need to win back the governors’ mansions in those swing states. Under that completely baseless theory, the Constitution’s provision saying that legislatures can appoint electors literally means that the legislatures alone, without following their own states’ normal constitutional procedures for legislating, could simply appoint their own slates to the Electoral College, notwithstanding what the states’ governors, courts, or voters prefer.

Republican-dominated state legislatures could, then, do what the Michigan and Pennsylvania Republicans refused to do in 2020. We can be sure that there is already pressure in those state legislatures to set up faux-emergency procedures that will make it possible to appoint their own electors for the Republican candidate in 2024.

Taking into account all of the states that currently have completely safe (due to gerrymandering) Republican-dominated legislatures, we might already be in a situation in which there simply are not enough states in play to allow a Democrat to win 270 electoral votes, no matter how many people vote for her or him.

Finally, even if a future Democratic presidential candidate were to win enough electoral votes to secure the presidency, and even if the Republican-dominated state legislatures were to allow those electors to be appointed, the dangerous and unconstitutional misreading of the Electoral Count Act on which some Republicans in Congress relied this month would allow federal legislators to challenge and reject enough electoral votes to hand the election to any Republican.

Although it was obscured by the insurrectionist terror on January 6, we must remind ourselves that the theory that Senators Ted Cruz, Josh Hawley, and others were pushing was that Congress could declare that Biden’s electoral votes were not legally valid. Only because the House of Representatives is held by Democrats were we sure that this gambit would not work. If Republicans had been in the majority in both houses of Congress, however, the pressure to validate Trump’s false cries of voter fraud could have been overwhelming.

If history repeats itself in the 2022 midterm elections, the Democrats will lose their majorities in both houses of the national legislature. And even if that does not happen, the next electoral vote counting exercise in January 2025 will be carried out by the Congress that is elected in November 2024, giving Republicans another chance to take or hold both chambers. With voter suppression and gerrymandering running at full tilt in the meantime, it is highly likely that the next Congress that will be asked to certify electoral votes will be majority-Republican in both houses.

Again, however, that last step will probably not be necessary. There are too many easy paths for Republicans to genuinely rig elections for them to need to rely on that last-gasp maneuver. A party whose officeholders are so loyal that they will forgive death threats is unlikely to pass up on so many opportunities for locking in power.

What can Democrats do? I will return to that existential question in a future column here on Verdict.

For now, I will repeat that I am absolutely delighted—and honestly surprised—to have been wrong about the prospects of getting Donald Trump out of the White House. I only wish that I could feel confident that we were no longer in danger of sliding into autocracy in only a few short years.

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