Thirteen days ago, President Joe Biden performed dismally in an event that he and his supporters assumed was going to be a triumph. The President, standing on a stage across from Donald Trump and armed with the knowledge that his opponent could not simply shout constantly and refuse to allow him to speak, had a golden opportunity to reset the narrative of the 2024 election.
Reset it Biden did, but in the worst way possible. Those of us who had been nervously ignoring claims that Biden has been losing his mental acuity were shocked into reality, and even those who believed enthusiastically that Biden is the Democrats’ best hope to keep Donald Trump from returning to the White House were despondent. No one could possibly disagree with the media’s immediate convergence on the adjective “disastrous” to describe what we all saw from Biden.
This past Thursday, I wrote a column on Dorf on Law in which I took seriously the idea that the outcome of the current argument among Democrats (about possibly replacing Biden as their nominee) might make the difference in whether or not Trump will become President again in 2025. In that column, I first explained why I refuse to use the term “debate” to describe whatever it was that CNN hosted on June 27, which is why I continue to refer to it as a non-debate. More to the larger point, I then argued that the evidence that we now possess suggests—strongly but admittedly not definitively—that the better option for anyone who believes that Trump must be defeated is for Biden not to be his party’s nominee.
Today’s column, however, is not principally concerned with what should happen next for Biden and the Democrats. Instead, I am approaching this question from the unique position of having long argued that the Republicans will install Donald Trump in the White House next January, no matter what happens this November. That is, the Biden-or-not discussion might in fact be purely academic, because Republicans are continuing to try to guarantee that Trump will become President notwithstanding any contrary results at the ballot box, and there is every reason to think that they will succeed.
Put another way, Joe Biden could have given the best performance of his life that night in Atlanta, and Biden and the moderators could even have relentlessly mocked Donald Trump for being the serial liar that he is, yet it still might not have changed anything.
If that is true—and I still believe that it is, unfortunately—should anyone even care about the current intramural battle over whether Biden should be the Democratic presidential nominee? If Trump is going to end up in the Oval Office either way, does any of this matter? Surprisingly, the answer is yes.
The Worst-and-Most-Likely-Case Scenario Going In
Nearly three years ago, I wrote a column here on Verdict with the provocative title “Dead Democracy Walking,” in which I summarized the steps by which Republicans will simply ignore any voting outcomes that they dislike. Readers who are interested in my other writings on that theme can find plenty of columns discussing various aspects of the argument by searching Verdict and also Dorf on Law. Because everyone’s time is limited, however, I will summarize the argument briefly here.
Essentially, the 2020 near-success of Trump’s coup attempt exposed the vulnerabilities of our system to being hacked by a committed and ruthless minoritarian party, which the Republicans have clearly become in recent years (after years of gestation). Importantly, it will only take the failure of one of those vulnerable links in the chain to crash the system.
Looking first at the end of the process, the January 6 joint meeting of Congress to certify the election requires only simple majority votes of both Houses to reject the electoral votes from contested states. If Republicans hold the House and retake the Senate, there is nothing that the sitting President of the Senate (who, unless something significant changes before then, will be Vice President Kamala Harris) can do to prevent Republicans from simply declaring that pro-Biden electors have not been properly appointed.
To be clear, we are talking about the House and Senate that will have been sworn in on January 3, 2025, which means that the people voting on January 6 will be the new Congress, not the current one. If the Republicans do not hold both Houses at that point, or (much less likely) if they control both houses but some Republicans refuse to steal the election for Trump, then Biden could yet be declared the winner.
That, however, assumes that the appointment of electors in December happens smoothly, which in turn requires us to believe that Republicans’ efforts to disrupt local boards of elections during vote counting will be unsuccessful.
And I cannot help but remind readers of all the Republicans’ efforts to suppress votes that have been successfully implemented since 2020. Georgia’s Republicans responded to their state’s electors going to Biden by enacting a voter suppression law so draconian that it led Major League Baseball to withdraw its All-Star Game from Atlanta in 2021. After that controversy died down, other large Republican-dominated states did the same or worse, which means that “accurate” vote counts this fall will be accurate only in the sense that they will tabulate the votes of those people who were deemed by Republicans to be acceptable voters.
All of this, moreover, sits uncomfortably under the threat of anti-voting violence by Trump-affiliated groups.
In any event, the bottom line is that Republicans have spent the last several years relentlessly working to make sure that what failed for them in 2020 will succeed in 2024. Again, even if Biden had channeled the ghosts of William Jennings Bryan and Martin Luther King, Jr., during the non-debate with Trump, it would not have mattered. Republicans are busily making the American electoral system voter-proof.
The Supreme Court’s Big Reveal on July 1
If that were not enough reason to lose hope, the U.S. Supreme Court this past Monday disabused Americans of any remaining fantasies that it will be a neutral arbiter in the upcoming election. In Trump v. United States, the Court’s six Republicans shocked the legal world by inventing from whole cloth a new presidential immunity doctrine that in important ways was even more radical than Trump’s lawyers had requested. The Chief Justice’s decision even went so far as to troll the dissenters by saying that they were “fear mongering on the basis of extreme hypotheticals,” even as the acts for which Donald Trump has been indicted are extreme and anything but hypothetical.
Why does any of that matter to the 2024 election? After all, the Court did not step in during the post-Election Day mess in 2020 and 2021 to save Trump from being declared the loser. Moreover, the Court even rejected the baseless “independent state legislatures theory” (ISL) in a case last year, which would seem to make it even less likely that this Court’s radical reactionaries would extend their solicitude toward Trump so far as to nullify election results.
There are two problems, however, with those comforting thoughts. On the latter point, there is nothing stopping the Court from reversing itself on ISL, or more likely simply distinguishing its 2023 decision based on some immaterial facts. That case, after all, was a dispute over a state supreme court’s decision regarding gerrymandering. How difficult would it be for the Court in a future case to say that a state’s legislature is in fact “independent” (of its own governor and state courts) in the context of awarding Electoral College votes, even if it is not independent when drawing congressional district lines? The Court’s 2023 ruling seems to rule that out, but again, this Court’s hyper-partisan majority has revealed fully (both in the immunity case and in the Trump ballot access case earlier this year, to say nothing of Dobbs and other outrageous recent decisions) that it can tap dance its way around any barriers to get where it wants to go.
The second reason to believe that the Court will intervene this year if needed is that the six-Justice supermajority has clearly become as comfortable with Trump’s transgressions in the last few years as has nearly everyone else in their party. In Fall 2020, the Court was refusing to act on Trump’s behalf in an environment in which many Republicans were relieved that Trump had lost and would presumably soon go away. The January 6, 2021, violent insurrection at the Capitol only reinforced that feeling. By the time 2024 rolled along, however, Trumpism had become the only game in town for Republicans. With both Clarence Thomas and Samuel Alito openly in the anything-for-Trump camp all along, the others have been able to look less extreme only by comparison. This term’s cases ended that charade.
How would they justify a pro-Trump decision in a major Supreme Court challenge? Their signature move at this point is to declare themselves the arbiters of democracy, such as their outrageous claims that they must eviscerate the administrative state—created by Congress and executed by the President, which are the elected branches of government—to protect the voices of “the people.” In an election challenge, all they have to do is say that the Trump campaign’s claims of, say, voter fraud in a Black-majority city in a swing state implicate democracy, and the brave Supreme Court majority will then declare itself up to the task of protecting the people by deciding which of their votes will count.
In short, it has been clear for years now that the U.S.’s system for running presidential elections is dangerously open to manipulation by malevolent anti-democratic Trumpist operatives. Now that the Supreme Court Six have shown their collective hand, no longer bothering to be even minimally respectful of precedent or simple logic, the idea that Republicans will allow a Democrat to win in 2024 has become little more than a pipe dream.
Soooooo …….. Nothing Matters, Right? Not So Fast!
To be clear, there is no reason for Democrats to act now as if nothing matters. After all, no matter how difficult it is to imagine that the Republicans will fail in their multipronged effort to close off all possibilities for Democrats to hold the White House, that there is any remaining doubt at all is reason enough to go full speed ahead and try to win the election. Republicans were incompetent—often comically so—in 2020, and even with the benefit of experience and renewed commitment, they might fail again.
That, in turn, means that Democrats do need to figure out the Biden-or-someone-else problem—and soon. If it appears that a non-Biden candidate could eke out a close win at the ballot box but Biden would lose—even if that win will probably be stolen from them later—then the answer is clearly to get Biden to drop out, and vice versa.
But the less obvious way in which all of this could still matter is that, even if the immediate future turns out to be as grim as I think it almost surely will be, there will be a post-constitutional America in which people of good faith will try to undo the damage that they were not able to prevent later this year. An effort at American Restoration would begin immediately. The more it looks like “the Democrats lost because they blew it,” the less legitimate all opposition during Trump’s autocratic rule will appear.
After all, one possible response to my assessment of the high likelihood of Republicans and their allies resorting to violence to “win” in 2024 would be simply to give up and let the Republicans take office uncontested. Notably, the president of the think tank that is devising Trump’s dictatorial agenda has said that the “second American revolution” will be bloodless “if the left allows it to be.” Victims of spousal violence and others will recognize that threat as the classic “Look what you made me do to you!” excuse of pitiless bullies, but that does not mean that the person being threatened might not choose the path of least resistance. Avoiding being the victim of violence is a powerful and understandable goal.
But resisting Trump and the Republicans if they are successful in tearing down the U.S. constitutional order will require not only courage but legitimacy. Legitimacy requires those in the resistance to be able to say that the new dictator was illegitimately put in power. The more extreme the elements of the coup are, the more illegitimate the coup will be.
All of which means that even if the pessimists like me are right about what will happen later this year and in early 2025, any hope for the future rests on how democracy is lost. If the Democrats stick with Biden not because he is the most likely to win in the first instance but because “we owe it to him to go out on his own terms” or some other non sequitur, then it will be extraordinarily difficult to say in the aftertimes that the Republicans took power illegitimately.
That might not be much to cling to, but even when things look bleak, there is always a way to mitigate the damage. Democrats need to find that least dangerous path. If they do, they might even stop the catastrophe from happening in the first place. Either way, however, they need to be clear about the consequences of getting this wrong.
