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Opinion | Did American Democracy Really Hold? Maybe Not.

It takes no great leap into speculation to show that Trump has taught his would-be successors very powerful lessons in just how to steal an election. Indeed, he’s shown that there’s already political and judicial structure in place that will make it far easier to pull off in elections to come, at least for Republicans, who hold most of the reins in state legislatures. Like the German military who saw the Spanish Civil War as a testing ground for the Luftwaffe, the GOP may come to see 2020 as the election that illuminated the path to seizing power over the will of American voters.

What would that path look like? It starts with the one Trump attempted to follow—and then requires just a few extra twists, all of which could be engineered by the GOP in the next few years.

1. Convince your voters that the election has been stolen from them

Mission accomplished. Somewhere between a majority and a large majority of Republicans believe Donald Trump was robbed of a second term. How could they not, given that the President has been saying literally for years that he could only lose if the contest was rigged?

His argument was greatly strengthened by the decisions of GOP-controlled state legislatures—yes, those same legislatures now being praised for their resistance to the demand that they choose electors—to prohibit election officials from processing mail-in ballots before Election Day. It was this decision that produced that “red mirage” of Trump leading the count early on Election Night. That, in turn, enabled estimable figures like Newt Gingrich to claim that Democratic votes somehow magically appeared in the middle of the night to throw the election to Biden—when in fact those votes were simply being counted.

In the face of the losing candidate’s baseless assertions about fraud and cheating, national Republican leaders covered themselves with—well, whatever it was, it wasn’t glory. Out of fear of offending their base, and with full knowledge of what had happened to ex-Senators Jeff Flake and Bob Corker, and ex-Rep. Mark Sanford, all but a few either stayed mute, or embraced the idea that Trump was entitled to pursue his legal rights in questioning the election. Thus, when Tennessee Senator Marsha Blackburn referred to Biden and Harris as “the president and vice-president elect”—acknowledging the reported facts, but violating the fictional version spun by her party head—she quickly apologized for misspeaking.

This conviction, along with the sense of “betrayal” by Republican-aligned players who didn’t go along with Trump’s fight—from Fox News to Republican officials in Georgia to a key Michigan bureaucrat—will be a potent political force in the coming year. “Avenge the outrage!” has powered the efforts of demagogues from Slobodan Milosevic to Osama Bin Laden. It will give fuel to the arguments that Republicans must ensure, whatever it takes, that the next election will be free of such “fraud.”

The first and most important requirement for this, of course, is a president willing to attack the election system itself—something we haven’t seen in a lifetime, but which doesn’t seem to have lost Trump much support from his party. Indeed, his charges are being amplified for the Republican base by a right-wing media eager to fan the resentments of its audience. With that built-in support, it’s hard not to imagine the next Trumplike figure—or Trump himself—adopting this as a standard part of the political playbook.

2. Make sure local and state officials are loyal

A thought exercise: Replay the events of the past week with a different cast.

Americans have long had the luxury of taking the machinery of democracy for granted—but suddenly we know all too well that the votes are counted and certified by specific individuals, with names and phone numbers and, in some cases, strong political loyalties. Imagine the state canvassing board in Michigan if both Republican members had been committed Trumpists. Imagine, next time, a Georgia Secretary of State and governor who owe their political careers to a Donald Trump actively seeking the 2024 GOP nomination, or to a candidate with the full-throated support of his followers. Imagine the same officials in Arizona or Wisconsin, where Biden won by far slimmer margins. The capacity to gum up the machinery of counting and validating votes, maybe even nudge it the other direction, would increase dramatically. If nothing else, Republicans—who control a majority of state houses in the US— now know precisely where to exert political muscle to ensure that loyalists hold those jobs.

Trump and his minions are already threatening primary challenges against officials who’ve argued on behalf of accepting the election results, or who have refused to step in to reverse the votes in Trump’s favor. Georgia’s secretary of state and governor are already in the crosshairs; Trump himself has threatened to support primary challengers against Alaska Sen. Lisa Murkowski and Ohio governor Mike Dewine for such heresies. It will come as no surprise if the GOP legislative leaders in Pennsylvania and Michigan are the targets of primary campaigns in 2022.

If the conviction of GOP voters that the 2020 election was stolen remains firm, these “heretics” could find themselves out of office come 2024—and that election machinery could be in the hands of far more pliable public officials.

3. Open the door to state legislatures seizing the vote

The Constitution makes it clear that state legislatures have the power (subject to Congressional override) to decide how electors are picked. They do not, technically, have to let the people vote at all; they could choose electors themselves, or delegate the power to the Commissioner of Motor Vehicles.

In fact, every legislature has passed laws giving that power to the people. But just how much power legislatures would have to take back the vote, if they now decided to, is a matter of considerable dispute.

One phrase of the Electoral Count Act of 1887, the federal law that was supposed to clarify the process after the chaotic 1876 election, shows just how much mischief a concerted effort could produce. Under that law, a state legislature can designate electors if a state has “failed” to produce a conclusive result by the time electors meet in their respective state capitols to cast their votes—some six weeks after Election Day. (This is what the Florida legislature was preparing to do in 2000 after the recount and ensuing court battles dragged on, until the US Supreme court ended the contest.)

So what would happen in a future election where state and local officials kept dragging their heels and deliberately delaying the process of counting and certifying—until the deadline for casting electoral votes was imminent? Under that circumstance, legislative leaders chosen for their political, rather than institutional, loyalty might plausibly claim that the state had “failed” and that it was up to the legislature to cast such votes.

4. Turn to the Supreme Court

One of the more reassuring elements of the post-election battles has been the consistent refusal of state courts to entertain the fantasies of Trump’s legal team (a team that increasingly came to resemble this year’s New York Jets). The barely-contained fury with which Matthew Brann, a federal judge with stellar conservative credentials, turned back the attack on the Pennsylvania vote was a case in point. But with the federal bench now loaded with judges elevated by a Tump-

McConnell axis, there’s no guarantee that future court fights—particularly arguments over the legitimacy of legislators overriding their voters’ decision—will not wind up before the US Supreme Court. And therein lies a problem.

While there is no case where the Supreme Court has spelled out how much power state legislatures have in electoral matters, opinions from Justices Thomas, Gorsuch, Alito and Kavanaugh suggest that power may be all but total, overriding any decision by any other authority. For instance, Kavanaugh argued last October that federal courts can and must strike down any efforts by state courts to make the process of voting easier—pandemic or no pandemic— without state legislatures expressly approving.

Now consider what we know about how state legislatures, almost all under GOP control in battleground states, have behaved. In Florida, voters in 2018 overwhelmingly approved a ballot initiative giving felons who have completed their sentences the right to vote. This would potentially have enfranchised more then 700,000 Floridians. What the legislature did was to forbid such enfranchisement unless all fines, court costs, and restitutions were paid—a provision that effectively took the vote away from all but a handful of those citizens.

There should be little doubt that, given the explosion of mail-in balloting that helped Biden win key states, there will be a firm push by Trumpists to limit such voting as much as possible, by tightening standards for signature-matching, or by shortening the time for such ballots to be processed. Given the current composition of the Supreme Court, any step to restrict the franchise by a state legislature has a good chance of winning the Court’s sanction. By extension, an argument by a state legislature that they had the right to choose electors, invoking the words of the Constitution to short-circuit the vote itself, will at least be given a solicitous hearing by this Court.

5. Bend the last guardrail: the U.S. Congress

Should a legislature claim the power to pick electors, that decision will be resisted in states with a Democratic governor—right now, those states include Michigan, Wisconsin, Pennsylvania, and North Carolina. The likely outcome of such a legislative power grab is that the governor, adhering to the poular vote results and the decision of state election officials, would appoint his or her own slate of electors, leaving it to the Congress to sort out the dispute.

The process for choosing among competing slates of electors is complex, but the bottom line is that if both houses of Congress are controlled by the same party, that party’s electors will almost surely prevail. In this sense, the 2022 midterms could have a decisive impact on an electoral vote dispute. Right now, Democrats have only a slim House majority; the combination of traditional midterm losses for the White House party and the likely effect of redistricting—Democrats had a disastrous election on the state legislative level— means that Democrats are in real danger of losing the House. If they cannot take the Senate by 2024, that could mean that a rogue Republican state legislature can be confident that its decision will win Congressional approval.

This cautionary tale is surely not written in stone. It would take a close election to set such mechanisms in motion, with one or two states, rather than half a dozen, requiring manipulation to affect the outcome of the presidential race. On the other hand, we have had two successive elections where the Presidency came down to a relative handful of votes in a few states. (A shift of 45,000 vote in three states this time would have resulted in a 269-269 tie, with the election being thrown into the House of Representatives, where…that’s a story for another time.)

What Republicans have learned from this last election—apart from their willingness to dismiss as utterly irrelevant the fact that their candidate lost by 7 million popular votes—is that the ancient machinery of conducting elections is rusted, frail, and highly vulnerable. They have seen exactly where the stress points of the system are, and how to pressure those stress points, and how it is raw political pressure—not lawsuits, or procedural know-how—that offers them the most leverage. They have already shown their willingness, even eagerness, to discredit the entire democratic process in the hopes of retaining power. There is every reason to believe that they will seek to collapse that system the next chance they get.


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