“There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive.” So said Miracle Max in “The Princess Bride,” and he might well have been describing the American system of constitutional democracy.
The midterm election results surprised almost everyone, with Democrats either holding steady or even adding a seat in the US Senate, holding and picking up key governors’ mansions, and flipping control of legislatures in important swing states. Most importantly, perhaps, voters rejected every election-denying Trumpist who ran to take control of their states’ voting mechanisms.
Unfortunately for Democrats, it appears as of this writing that they will lose their current majority in the US House. As my Verdict colleague Michael Dorf and I explained in separate columns over on Dorf on Law late last week, that outcome alone is enough to guarantee chaos over the next two years, because still-radicalized House Republicans will stop President Biden’s agenda in its tracks while launching endless investigations of Democrats, impeaching Biden (for reasons to be specified later), and—perhaps most importantly—holding the US and global economies hostage yet again by refusing to increase the debt ceiling to allow America to pay its bills.
In a column on Verdict next week, I will explain what the Democrats’ options will be when the Republicans inevitably move forward with that debt ceiling doom strategy. Setting that aside for now to talk about something more pleasant (which is roughly akin to having a discussion on the Titanic about the next day’s shuffleboard tournament), however, I want to ask here whether last week’s election returns might require me to update my oft-repeated prediction that our political system is a dead democracy walking.
Short answer: Things do indeed look slightly better, for various reasons, but the odds are still incredibly long against our survival as a constitutional republic. Longer answer: See below. Most important takeaway: It is possible to imagine that only Donald Trump (if he is nominated again by the Republicans) could finish off American democracy. And that means that if the current rumblings among Republicans to “move on from Trump’s chaos” are true, that might—might—create the path to sanity that we have been hoping to find.
The Moving Parts of a Grievously Wounded Political System
The 2020 election and its aftermath exposed a surprising number of weaknesses in the constitutional and statutory foundation of our political system. We have long known that presidents could be elected with a minority of the popular vote, which is a rather strong hint that we are kidding ourselves when we call this country a democracy, but until two years ago, we had not had reason to look at all of the other weaknesses that were hiding in plain sight, waiting to be exploited by a ruthless narcissist and his enablers.
Although a horde of Trump’s supporters eventually tried to carry out a bloody coup, it was the bloodless parts of his allies’ election-nullifying strategies that took most of us by surprise. After all, everyone knows that any government can be overthrown by sufficient force, which means that we are always operating on the implicit hope that our system will not succumb to violence. Learning that our laws might have opened a path for Trump to stay in office without violence, however, was the true eye-opener. For example, no one had ever before had reason to think about what happens on January 6 after a presidential election, and those who did know about it considered it (quite reasonably) to be a mere formality. Now we know better.
From the standpoint of protecting democracy, then, has anything changed in light of the midterms? The answer very definitely is yes. Among other things, it will now be impossible for the Republican presidential nominee to guarantee a win in 2024 by having his partisan allies in swing states legally change the rules for appointing presidential electors. Republican candidates for governor lost last week in Wisconsin, Michigan, Pennsylvania, and Arizona. In Michigan, moreover, both houses of the state legislature—where, by the way, gerrymandering is impossible, because of a 2018 state law requiring nonpartisan redistricting—flipped to that state’s Democrats, and it appears that Democrats will now also be in charge of one of Pennsylvania’s two legislative chambers.
This matters in the presidential context because it is likely that all of those will be the decisive swing states again in 2024. If Republicans had been able to win the governorships and hold both houses of the legislatures in any three of the five closest swing states from 2020 (Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin), they would have been able to change their election laws to override the voters’ will in favor of sending Republicans to the Electoral College in 2024—with those switched electoral votes preventing the Democrat from winning.
Importantly, this would not even have been constitutionally iffy, because Article II grants the power to choose electors to state governments, not to the voters directly. If a state were to pass a law today saying that, say, its governor will decide which slate of electors will represent the state in the Electoral College every four years, that law would not violate the United States Constitution.
Now, however, such laws have no prospect of being passed in enough states to guarantee a Republican win in 2024. Because four of those states will have Democratic governors, there is no way that enough states could be rigged in advance by Republican-controlled governments to overturn the will of the voters. Therefore, the midterm election results have neutralized one important constitutional weakness.
This predicament for Republicans would force an election-denying Republican nominee to fall back on the utterly baseless “independent state legislature theory” (ISL) which is a claim that the US Constitution’s use of the term “legislatures” in key clauses of Article II empowers Republican-run legislatures to ignore their own voters (as well as their governors, supreme courts, and constitutions) and simply appoint Republican slates to vote in the Electoral College on December 14, 2024.
What if, as seems sadly likely, the Supreme Court endorses ISL in time for the 2024 election, either in the pending Moore v. Harper case or via some other case? Michigan and Pennsylvania are no longer fertile ground because Republicans must control both houses of a state’s legislature for this to work. That would mean that even if the Republican nominee wins in Georgia (or if Georgia’s now-reelected Republican governor Brian Kemp were to intervene to change the results in 2024, even though he refused to do so in 2020), he would need to have the state legislatures in both Arizona and Wisconsin step in and invoke the ISL.
Would they do so?
Challenges in Congress on January 6, 2025
Before answering that question, consider what could happen even if they do not. We saw in 2021 that Trump’s supporters believed that the vice president had the power to refuse to count electoral votes on January 6, but that is a moot question in light of Kamala Harris’s having replaced Mike Pence in that office.
Even so, Pence’s refusal to intervene did not stop some Republicans (most prominently Josh “Watch how fast I can run from the murderous mob that I egged on!” Hawley) from trying to block the counting of Democratic votes via the Electoral Count Act, which allows simple majorities of both houses of Congress to reject any state’s slate of electors. Because Democrats held majorities in the House and Senate at the time, it did not matter that Republicans challenged the results in Arizona and Pennsylvania when Congress reconvened after the mob had been cleared out of the Capitol. That is why Joe Biden is President today.
But what if Republicans hold majorities in both houses on January 6, 2025? The Congress that meets on that day will reflect the results of the 2024 down-ballot elections, and Republicans might hold or expand their House majority in those races. What about the Senate? Even if Senator Raphael Warnock holds his seat in next month’s runoff in Georgia, giving Democrats a 51-49 advantage through the end of 2024, that lead could be wiped out in the next election. There are six extremely vulnerable Democratic senate seats (in red states including Montana, Ohio, and West Virginia, as well as the swing states of Arizona, Nevada, and Pennsylvania), and exactly zero vulnerable Republicans.
This presents the possibility that Republicans could, on January 6 two years from now, hold majorities in both chambers when Congress meets to decide whether to certify the Electoral College’s vote. They would thus have the power—and the very strong incentive—to vote as a bloc to strip a legitimate win from the Democratic President-elect and award the White House to their own nominee.
Would they do so?
Would Republicans Trash the Constitution for Anyone Other Than Trump?
I concede that this column has thus far wallowed in quite of bit of institutional and political muck, but doing so was necessary to answer the questions above and to determine whether the future looks brighter than it had looked until last week.
To briefly recap, there were four possible routes that Republicans might have been able to take on the way to ending democracy, two of which have been extinguished for the time being. (Straightforward all-Republican-ruled states cannot on their own guarantee enough electoral votes to lock in a win for their candidate, and Vice President Harris will obviously not try to push beyond the boundary that even Mike Pence would not cross.) On the other hand, Republican state legislatures could use the ISL theory to substitute their own electors such that their candidate would win, or Republicans in Congress could refuse to count votes from any states that they choose to reject.
Note also that even these two remaining avenues are built on factual predicates that might not materialize, the first being that the Supreme Court recognizes ISL (or stays out of the fight in late 2024, if it has not yet ruled specifically on that question) and the second that Republicans hold both houses of Congress in the legislative session that begins on January 3, 2025. As I have argued above, however, both of those necessary conditions seem all but certain to hold.
And we should not forget that there is always that fifth possible route to the end of democracy: a violent coup, where Republican-fueled protesters succeed in doing in 2025 what they failed to do two years ago.
Would they do so?
Who Can Fire Up the Republican Base Enough to Break Democracy?
That is now the third time I have asked that question—“Would they do so?”—and I think that the answer is surprisingly the same in each case. If passions are such that state legislators in Wisconsin and Arizona would defy the will of their voters, and if temperatures are running high enough that congressional Republicans would make the fateful decision to ignore the legitimate results of an election, then it is highly likely that there would be the will among Republican true believers to take violent action if the states or Congress refused to do their bidding.
All of which makes it essential to understand who could whip up the kind of fervor that would be needed to cause Republicans (both officeholders and voters) to transgress the bounds of American democracy, delivering its true death blow.
It is possible that this is not a person-specific matter. After all, much of the Republicans’ energy is derived from hating their enemies, and a person who wants to “own the libs” or who thinks that liberals want to “groom” children for sexual exploitation will not particularly care which Republican they install by upending the election results to keep a Democrat out of office.
On the other hand, there could be something specific to Donald Trump that provokes the kinds of intense loyalty and anger that we have seen over the last six years. If for some reason Republicans abandon Trump (or if he chooses not to run, or is in jail, or dies from ill health) between now and Election Day 2024, would that fire-breathing passion transfer to the new nominee? Would, for example, South Dakota’s governor Kristi Noem, or Arkansas senator Tom Cotton be able to “unleash the beast” in the way that Trump did? Would state legislators and members of Congress be willing to throw out the Constitution for any of the non-Trump nominees?
We cannot know the answer, but it seems more than fair at least to doubt that any other possible nominee could command the kind of fear and conformity among both politicians and the public on the right that Trump can. Again, it is possible that this is not tied to a specific person, and it is also possible that even Trump would again fail if he were the nominee and tried to throw out the results. But the question is important nonetheless whether there are demagogues out there who could do what Trump has done. There might not be.
In any event, although there are still paths to the destruction of democracy that remain available to today’s radicalized Republican Party, it is worth taking a moment to note that those paths are fewer and narrower than they were before this month’s elections. That might not stop the worst from happening, but for those who need to find reasons to be less pessimistic (even if we cannot be optimistic), there is indeed “a big difference between mostly dead and all dead.”
