Saturday, August 1, 2020

BTRTN: How The Election Gets Stolen... and How We Stop It

It is less than 100 days away, and Trump and his goon squad are giving every indication that they will manipulate it, muddy it, bludgeon it, challenge it, and try to dismiss it. What can we do in these last 100 days to fight back? 

Don’t start reading this at 11:30 p.m. 

It's likely to freak you out and make it hard to sleep, and if you do, you’re going to have nightmares. No, this is not a blood curdling Stephen King piece of fiction.  As my old Williams College history professor used to say: “Who needs fiction when reality is this crazy?” 

If you, my fellow citizens, are frightened by this, so be it. There are less than 100 days until election, and it is now officially time to get really worried. And to get to work. Everyone.

Let’s say this as plainly as we can: in order to ensure that Joe Biden is sworn in as President of the United States on January 20, 2021, he is not just going to have to win a number of those big swing states, but he is going to have to win them by real and comfortable margins … or else there is the very real possibility that the Republicans and Donald Trump will be able to muddy the waters just enough to create a Constitutional catastrophe. In a worst case scenario we will examine, Donald Trump loses the popular vote and the Electoral College… and still keeps the Presidency. 

Sure, things look good now for Biden and the Democrats, but we progressives have a tendency to be a bit trusting, idealistic, and – in our admirable commitment to “playing by the rules” – we may be naive about the way this game is going to be played. We still may not really believe Trump, Barr, McConnell, and their moneyed donors are essentially ruthless, cutthroat, and soulless mob bosses who have already proven a complete willingness to subvert, pervert, and destroy American Democracy in order to retain power. Trump, Barr, and McConnell have already demonstrated that they will brazenly and comfortably twist, manipulate, and abuse the power they hold as heads of the Executive, Senate, and the Department of Justice for purely partisan and personal enrichment. And heaven knows what "October surprises" they are planning.

The 2020 election will be the apotheosis of a long-standing tradition of Republican dirty tricks.

Understand just how bloodthirsty Donald Trump is to retain the office of the Presidency. For Trump, keeping the White House is not simply some political vanity, it is a life or death struggle to stay out of jail. Trump knows that if this election goes to the Democrats, the full array of his private, corporate, and governmental crimes will be laid bare by aggressive states attorney generals and by a newly installed U.S. Attorney General. Personally, I’m rooting for Adam Schiff, who won’t feel justice has been served until Trump is breathing the coronavirus-rich air of a Federal penitentiary. Trump knows he is guilty of enough crimes to seal this fate, so he will do anything – and that includes putting the safety of American citizens at risk – to keep power. 

Democrats are playing by the rules and no one on Trump’s team is. Republicans are going to lie, cheat, steal, vilify, and destroy anything they view to be in the way of a second term. No one is saying that we sink to their level. It’s just going to mean that we all have to roll up our sleeves and actually work to get Joe Biden elected by as large a margin as possible. That is truly our most certain defense. 

Yes, Trump and his henchmen are going to use every trick in the book to push this election to Donald Trump… and unfortunately there is a stunning array of tricks under their direct or indirect control. Allow me to relay just one scenario for you today that weaves together Trump’s outrages in Portland, his endless refrains contesting the legitimacy of mail-in ballots, his quest to delay the election, the reports of voter suppression and intimidation, Trump’s apparent unconcern for the raging COVID-19 pandemic, and why Trump is quadrupling down on his 2016 strategy of stroking his base to climax without the slightest regard for converting a single centrist voter. 

My nightmare involves a few words buried in the obscure 12th Amendment to the United States Constitution, which was drawn to my attention by a long-time BTRTN reader who is a much-decorated combat veteran and a great patriot. His tip sent me off a-googling, where I encountered a fully fleshed out version of this theory written by journalist Greg Palast. 

The Twelfth Amendment to the United States Constitution was drafted in part to address the issue of how the President should be chosen in the event no candidate received a constitutionally-required majority of votes in the Electoral College. In the early years of our Republic, the two party system had not completely settled, and three and four candidates were often in serious contention. There was therefore very possible that no candidate would achieve the necessary Electoral College majority.
Indeed, this did happen – once. No candidate received a majority in the Electoral College in 1824, and John Quincy Adams was elected President in 1824 in the manner prescribed by the 12th Amendment… by a vote in the House of Representatives, in which each state’s delegation cast one vote. 

One reason you’ve never heard of the Twelfth Amendment is that in the era of a highly-evolved two party system, it holds virtually no relevance. It has been over 50 years since a third-party candidate for President won the electoral votes of a single state. With only two parties essentially dividing all the electoral votes, the only real reason that neither candidate would win a majority is if there were to be a tie… which is technically possible, as the Electoral College has an even number of electors. But there is only a tiny chance of a tie in the Electoral College, and without a powerful third party candidate to siphon off Electoral College votes, it would appear impossible for neither candidate to receive a majority.

Or so it would seem.

Palast, however, takes the position that a state could intentionally withhold sending its delegation to the Electoral College for the precise purpose of denying one candidate a majority. Say there is a heavily Republican State Legislature in a swing state that goes to Biden in the popular vote by a razor thin margin. That state legislature could, hypothetically, claim it needed to investigate alleged voter fraud in enough of the ballots to sway the election, and simply conclude that it cannot certify the state’s election in time for the convening of the Electoral College, according to journalist Palast’s reading of the 12th Amendment. 

Depending on how close the election is (see Bush v. Gore, 2000), it might take only one state refraining from certifying its slate of electors to deny Joe Biden a majority in the Electoral College. And if no candidate reaches a majority in the Electoral College, the Twelfth Amendment mandates that the President by chosen by the House of Representatives, with each state getting one vote. So while the House of Representatives in total has a strong Democratic majority, the fact is that more than 25 states have more Republican Representatives than Democrats.

Trump wins again.

Yes, Trump keeps the White House, with a full Constitutional basis to his claim… having failed to win a majority of popular votes, or even a majority of votes in the Electoral College. 

It is interesting to study recent Republican tactics and Trump actions with this scenario in mind. 

Many people are puzzled why Donald Trump continues in the face of poor and declining national job approval ratings to focus his entire efforts on pleasing his narrow Red State base, rather than try to expand his appeal. This theory helps explain it: Trump may figure that the only path to re-election is by (1) replicating his 2016 muscle in deep red states, (2) focusing on voter suppression and intimidation in swing States, and (3) sowing as much doubt, uncertainty, and contention as possible by aggressively messaging that mail-in ballots are corrupt. This provides the rationale for State legislatures to declare their elections to have been corrupted… potentially triggering the need for the 12th Amendment. 

You find the scenario hard to believe? Consider that the recent Georgia primary election was an utter and complete shit-show, demonstrating how a Republican-controlled executive branch can suppress the vote, disenfranchise voters, and create chaos and ambiguity surrounding an election. Georgia slashed qualified voters from the lists used to confirm voters at polling places, citing any failure by a citizen to vote in the last two elections as reason to declare that voter inactive. This is squarely against Supreme Court rulings. Georgia under-equipped polling places in minority neighborhoods, with the intent of creating long lines that forced all but the most determined to abandon their desire to vote. This, of course, was the game plan that got the second stupidest man in America – Brian Kemp – elected governor in 2018.

While some of the most important swings states have Democratic Governors who could limit such tactics (Michigan, Wisconsin, Pennsylvania), states like Florida, Arizona, Iowa, and Georgia are run by Trump puppets.

But then again, why rely only on Republican Governors to undermine sanctity of the election process when even more carnage can be wrought by Trump's Federal storm troopers?  Trump’s imposition of a variant of martial law on an American city is, at one level, an obvious attempt to rachet up the “law and order” culture war he launched when he attempted to re-brand the BLM movement as just so many looters and anarchists. At a second different level, he knows that the images played on loops over at Fox News are galvanizing the liberal-hating racists in his base, creating a renewed urgency to support Trump among those who have been alienated by his handling of the COVID-19 pandemic. 

And, at yet a third level, Trump is trying now to “normalize” the use of Federal troops to quell “out-of-control” protests so that he can order those troops into swing state cities on election day to intimidate voters in minority neighborhoods. If Trump can use put Federal troops into majority Democratic cities on the pretext of quelling damage to Federal property, there is nothing stopping him from sending battalions into Democratic precincts in swing states days before the election, egging on the type of confrontations that in turn are used as justifications for police violence. Guns, tear gas, and beatings would understandably stop many voters in their tracks. Fewer voters in Democratic districts, while Republicans enjoy an easy stroll to the voting booth? These are the actions that can change outcomes.

So you think that Trump’s benign neglect of the coronavirus has simply been an epic demonstration of incompetence, stupidity, and being completely asleep at the wheel? How about this theory: Trump may well think that a still-widening COVID-19 pandemic on election day is helpful to his cause. He intends to use it as exhibit one for why the 2020 election is fraudulent. Read this stunning tweet of July 29:

“With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”

Who knows if Trump seriously thinks that he can move the election, but that issue is the secondary point. Trump’s real objective is to prep the market for the bigger sale: that because there will be broad mail-in balloting due to the coronavirus, the election cannot be trusted. He is sowing the seeds for a massive legal battle over the legitimacy of the election. 

So let’s say, for sake of argument, that Joe Biden wins all “Blue Wall” and “Blue Leaning” states, and even appears to have won the popular vote in all six of the states considered to be the most contested swing states in the 2020 election: Michigan, Wisconsin, Florida, Pennsylvania, Iowa, and Ohio.  That would give him a handy Electoral College total of 332. Wonderful.

But what if, of those crucial six states, he flips only three that went for Trump in 2016 – say, Michigan, Wisconsin, and Pennsylvania. Biden still wins a majority of the Electoral College, but it is quite narrow... a mere 8 electoral votes over the 270 needed for victory.

Now comes the ground-zero impact of Palast's theory: what happens if just one of the states Biden “won”  – say Wisconsin, with ten electoral votes – has its election process bludgeoned Trump’s goons? What if understaffed, under-equipped polling places and Federal riot police intimidating voters in minority areas have made the actual vote closer than it should have been? Then Trump’s legal team goes to work, claiming widespread voter fraud in the "unreliable" mail-in ballots. In this perspective, an untamed COVID-19 epidemic actually helps Trump, as tens of thousand of people mail in ballots rather than risk contagion in lengthy lines at the voting booth. Trump has pre-conditioned his believers to view mail-in ballots as rife with fraud. 

Wisconsin’s Republican Legislature then decides that the election is "contaminated" by fraud, and refuses to ratify the election, forbidding Biden electors from convening with the Electoral College. Denied those ten votes, Biden has only 268 votes, Trump has 260, and ten votes go uncounted. Neither candidate wins a majority of the Electoral College. The Twelfth Amendment is invoked. 

The selection of the President is turned over the House of Representatives, where each state gets one vote. While the Democrats have the majority of total representatives, the Republicans have the majority of Representatives in over 25 individual state delegations.

Trump wins a second term.

Here’s the really bad news. This could happen in Wisconsin... or Florida, Ohio, Michigan, or Pennsylvania. Any of these states could end up denying Biden an Electoral College majority by withholding their certification of their elections. All of them have Republican legislatures. 

All of the above leads to an interesting implication: Trump believes that he is going to lose the election. 

So he is urgently putting every mechanism he can in place to sow doubts about the legitimacy of our elections.

His real end-game is a replay of 2000, when the election of the President was taken out of the hands of the voters, and turned over to the Supreme Court.

Yes, in the scenario that I have laid out above, there are Constitutional grounds for an invocation of the 12th Amendment, but there is a huge legal battle to be fought over the notion that state legislatures have the right or the true justification to withhold electoral ballots and deny their citizens their say in the election of the President. Readers should feel confident that the DNC already has the equivalent of a good-sized law firm researching, war-gaming, and preparing to go toe-to-toe with any legal argument that Trump’s Republican Party attempts to advance.

Now, let's step back from Mr. Palast's specific 12th Amendment scenario, as there is a broader point to be made.  

In every state in which the margin of victory is narrow, expect that on Wednesday, November 4, a fusillade of lawsuits will come thundering forth... perhaps from all of Ohio, Michigan, Wisconsin, and Florida, and Pennsylvania. Demands for recounts will only be part of the matter. Republicans will attempt to de-legitimize adverse outcomes by claims of voter fraud, and Democrats will counter with allegations of voter suppression and intimidation.

Trump will do everything in his power to push the narrative of an invalid election, all to the purpose of pushing the actual decision of who won to a Supreme Court that leans Conservative.

Should he succeed in that objective, we may well encounter a moment in December, 2020, or January 2021, when the fate of our election rests in the hands of a Supreme Court in which four conservative judges will dutifully line up behind Trump, and the four liberal judges will staunchly fight for Biden. The fate of our election – the final arbiter of 130,000,000 votes – will be one man: the Chief Justice of the United States, John Roberts.

Think about just how tenuous our hold on democracy really is if the future of our Republic comes down to the judgment of one person.
I take heart that John Roberts’ decision to side with the liberal wing of the Court on three major cases is a sign that he is not a hostage to rigid ideology or partisan interest. 

Moreover, over the years, we’ve had hints in the body language that John Roberts has little regard for Donald Trump. Most notably, there was the harsh scolding Roberts dished out when Trump complained that there were “Obama judges” in the Federal courts. 

I may disagree with Roberts, profoundly at times, but I think he is a patriot and that he knows Donald Trump hasn’t the slightest interest in the Constitution, the rule of law, and the separation of powers. I suspect Roberts finds that despicable. 

Indeed, there is a tiny, whispering voice that wonders whether Roberts intentionally stood left of center on the three major recent cases simply to send a signal to Donald Trump: try to screw with the election, and watch where I stand.
Ah, but isn’t that just one more example of the sweet, na├»ve dreaming of an idealistic liberal that I warned about at the opening of this piece?
In his inaugural address, John F. Kennedy deftly toggled back and forth between lofty, idealistic goals and tempering doses of sober, clear-headed realism about the dangers of the emerging modern world. In his concluding paragraph, he landed on the issue of personal responsibility. "With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God's work must truly be our own."

The only way to mitigate the blunt instrument force that Donald Trump intends to take to our 2020 election is to make the margin of victory too big to doubt, too big to question.

The only way to bury the lawsuits is to render them moot before they are filed… to win by such a margin that the disputed ballots in one polling place do not change the results of the county, that a dispute in one county does not change the result of a state, that the results of one state do not change the outcome of the Electoral College. 

The vote is, at is has ever been in our democracy, our turn to speak. It is time to hit Trump with our very best shot. We will only get one.

No matter what polls may say today, it is not enough. 

When people like Barack Obama ask you if you are really doing enough to elect Joe Biden, that’s what he means. 

At this grave moment in our history, we can never do “enough” work to save our democracy.

We can never do “too much” work to vanquish the soulless, bitter, hollow, inadequate man who would casually toss away our freedom to preserve his own privilege. 

Less than one hundred days from now, the fate of a great experiment in self-rule will face one of its greatest tests.

If these turn out to be the final 100 days of our freedom, how will you say that you spent them? 

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  1. Thanks Steve for getting my blood boiling on a gorgeous Saturday morning

  2. I needed to know this. Thanks!
    This is the most likely scenario.The 12th amendment is something I didn't think about.

  3. I'm surprised you didn't comment on the insecure voting machines themselves. Any thoughts on that?

  4. There is a flaw in Palast’s scenario. To prevail in the electoral college when the votes are opened and counted on January 6, one needs “a majority of the whole number of Electors appointed.” The key term in the 12th Amendment is “appointed.” Were a state to withhold its electoral votes then it has not “appointed” electors and effectively disenfranchises itself. In that scenario the “whole number of Elector’s appointed” is less than 538 and whatever that number is, a majority of it elects the President.

    Nonetheless the possibility of manipulating the electoral college is even scarier than Palast’s scenario. This law-review article is a must-read:

  5. The law review article I posted the link for above is by Edward Foley, Ebersold Chair in Constitutional Law and Director, Election Law @ Moritz, Ohio State University Moritz College of Law.
    Foley points out that by federal law it is the executive of each state (presumable the governor, or the secretary of state) not the legislature, that certifies the electoral votes and sends the "ascertainment" of the votes to Washington. He then then goes on to lay out a scenario, in important ways similar to Palast's, where the state's legislature intervenes on the grounds that the constitution places the authority to "appoint" electors in the state legislatures. In Foley’s scenario, rather than withholding the states electoral votes, the state legislature appoints a competing slate of electors and submits those votes to Washington, so that on January 6 there are two competing returns from the state. The article uses Pennsylvania as the example.

  6. There are a number of scenarios which go far outside the "usual" election processes to result in opportunities to manipulate a "victory" for Trump. And there clearly is a motive for the manipulation. Opportunity and motive are classic tests to determine is there could be a crime.

    However, let me suggest a few circuit breakers.

    1. the greater the election margin, the less likely any manipulation will be sufficient to overcome the margin. Goddard's consensus Presidential Election Interactive Map displays a consensus view of numerous, relatively independent, estimates. The current margin is
    Donald Trump: 125 Joe Biden: 320 Toss Up: 93
    If that margin holds, there would need to be extraordinary interventions to deny an Electoral College majority to Biden.

    2. Intervention in elections sufficient to impact outcomes assumes widespread competence, integrating voter registration interference, on the ground disruption at the polls, election law claims, legal and political arguments sufficient to provide cover for those trying to cast doubt, and partisan allegiance in courts, legislatures and executive branches. I have an extraordinarily pessimistic view of Trump's campaign developing such competence.

    3. It assumes such actions would not trigger Democrats to take equivalent actions to disrupt Republican victories.

    4. Even if everything in the plan DID come together and the vote goes to the House, it would be the 117th Congress. We don't know what the partisan balance of state delegations will be. Nor do I believe that every Representative would vote in a partisan block -- especially if the race had been "called" for a candidate. I hope the extreme of "stealing an election" would be a step too far for some.


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