The Once and Future Takeover II -- vulnerabilities and vengeance

capitol-riot-documented-1_saul_loeb_AFP-Getty_Images.jpgIn the second of four parts, analyst Sean Dobson outlines the weaknesses in our ageing constitutional system that could be exploited by right-wing zealots, especially elected Republicans in federal and state office. Existing strategies of voter suppression and partisan gerrymandering (the GOP is much better at the latter) will combine with further attacks on the judicial system, top to bottom, as well as internal party attacks to remove GOP officials who remained loyal to the democratic electoral system, as Dobson, who is board chair of Progressive Maryland. Further, the already-flawed Electoral College system is further open to exploitation by GOP state legislators. Each part of the strategy is well known to be vulnerable to manipulation but, added up, the dangers this poses to democratic process are truly alarming and will need to be addressed.

This is the second of four parts being published on the PMBlogSpace this week. The complete essay may be read at https://seandobsonprogressive.wordpress.com/category/blog/ 


 

 

Most Likely Path of a Future Strong Republican Coup Attempt

By Sean Dobson/PM BlogSpace Analysis/ In a nutshell, a stronger, future GOP coup would combine pre-election voter[1]suppression measures that have worked for decades plus add putsch tactics that 6 showed promise in 2020 – except this time executed under better leadership. Alarmingly, such an assault could exploit the pre-democratic presidential election rules of our antiquated, 18th century constitution (hardly improved by subsequent Amendments, legislation, or Supreme Court interpretations) for reasons described below.

First, all Republicans agree on the need to disenfranchise Democrats before elections and this decades-long project will continue and intensify over the next four years in any jurisdiction the GOP controls and in the ways described above.

Second, Republican state lawmakers, disgusted at how almost all GOP-appointed judges rejected Trump’s baseless allegations of “voter fraud”, will almost certainly start appointing judges even farther to the right.

Third, as the 2024 election approaches, the Republican base will probably be at least as enraged and seditious as it was in 2020 and thus readier than ever to attempt to subvert the election WHILE and AFTER ballots are cast. Academic studies find strong majorities of Trump voters attracted to authoritarianism.4 For decades, most Republicans tried to conceal their hatred of democracy, but nowadays the entire party embraces a slogan formerly confined to its hard-right fringe: “America is a republic, not a democracy”. Yet, in the same breath, 77% of Republicans complain that Biden stole the 2020 election,5 which leads half of them to believe the mob attack on the Capitol was justified.6 All that incoherently expressed white-supremacist rage will be whipped to a frenzy by right-wing traditional and social media, further fueled by four years of a Biden Administration whose progressive agenda and diverse personnel will infuriate them every day. As most Republicans believed the QAnon conspiracy theory,7 they could view it as a divinely imposed duty in 2024 to defeat the Satan[1]worshipping, baby-eating, communist Democrats by any means necessary, even (or especially) if it requires brute force.

Fourth, thanks to the undemocratic effects of the Electoral College, close presidential elections have become the norm over the past 20 years even though the Democratic nominee usually clearly wins the popular vote. Thanks only to the Electoral College, the 2016 election was decided by a mere 50,000 votes spread over three states; 2020 was decided by 43,000 votes spread over two; and 2000 by a few hundred in Florida alone. For this reason, an enraged GOP base would 7 probably only need to scare Republican legislators in two or at most three swing states to falsify results in order to illegally flip a presidential election to the Republican candidate.

Fifth, the Right might learn the lessons of Trump’s failed coup and thus channel base anger more productively into targeted, district-specific threats of primary challenges against state legislators who refuse to falsify Electoral College slates and against Members of Congress who refuse to certify them. Those lawmakers will take these threats even more seriously than ever given the near certainty of strong primary challenges in 2022 against Republicans who refused to support Trump’s putsch, notably, Georgia Governor Brian Kemp, Georgia Secretary of State Brad Raffensperger, and the 1/3 of the House GOP caucus who voted to certify Biden’s victory. By 2024, many of these constitution-supporting Republicans will have retired rather than lose the Republican primary, others will have been ousted by extremists, many of those who survive will thereafter trim their sails further to the Right, and all Republican incumbents will feel even more beholden (indeed, intimidated, given the frequency of death threats) than ever vis-à-vis their own radicalized base.

In a surprising and grotesque irony, the putschists could justify their actions by reference to federal law, Supreme Court precedent, and even the U.S. Constitution. Article II gives state legislatures sole authority to appoint Electoral College slates. True, in the two centuries since ratification all 50 states have passed laws requiring that the presidential popular-vote winner obtain that state’s (or in the case of Maine and Nebraska, Congressional District’s) Electoral College votes; and various state and federal laws empower Governors (not state legislatures) to “certify” presidential results at the state level. Nevertheless, a Republican-controlled legislature in a swing state, under pressure from the GOP base, could spuriously claim the election “failed” due to non-existent “voter fraud” in that state’s Democrat-rich city or cities (e.g., Philadelphia in Pennsylvania, Milwaukee in Wisconsin, Detroit in Michigan, Phoenix in Arizona, Atlanta in Georgia); disqualify only those urban votes as “fraudulent” (thus obviating the need to re-do their own elections in rural and suburban districts); and falsely declare the Republican presidential candidate the winner of that state “based on the tally of legal and valid votes cast”. In short, Republican-controlled legislatures could in Orwellian fashion claim that their Constitutional authority under Article II not only trumps state law requiring that the popular vote winner 8 obtain that state’s Electoral College votes, but that it positively obliges them to intervene to correct “voter fraud” perpetrated by “corrupt, big-city Democrat machine politicians” and thereby actually honor state laws awarding Electoral College slates to popular-vote winners.

If that state has a Democratic Governor, she of course would denounce the Republican legislature’s putsch attempt and certify a veracious Electoral College slate awarded to the true popular vote winner, which under this scenario would be the Democratic presidential candidate.

But thanks to the aforementioned decisions in 2020 by the U.S. Supreme Court, federal judges would be less able than hitherto to disqualify the false Republican slate(s). For those rulings in effect strengthened the precedent set by the Supreme Court’s notorious Bush v. Gore decision of 2000, which made it more difficult for federal courts to interfere in how a state administers elections, even federal elections, and must accord special deference to the constitutional authority of state legislatures to appoint Electoral College slates. Thus, assuming conservatives continue to dominate the Supreme Court in 2024 and/or 2028, it seems likely the federal judiciary would either validate false slates or refuse to disqualify them.

It would be tempting to construe those same Supreme Court decisions as allowing state-level courts to invalidate falsified Electoral College slates. However, the Supreme Court stressed the paramount authority of state legislatures in appointing Electoral College slates. And let us not forget that Bush v. Gore specifically sided with the Florida legislature against the Florida Supreme Court in a similar dispute. Reading all these tea leaves together, it seems likely that a conservative Supreme Court would once again side with state legislatures against Governors and even state courts in the event of dueling slates.

Supreme Court blessing of the coup would amount to an enormous propaganda victory for the putschists. But it would impose no compelling legal authority on Congress, which the Constitution clearly designates the final arbiter of any dispute involving Electoral College votes. Crucially, however, this final arbiter is a Congress operating under the antiquated rules of an undemocratic, 18th century constitution, one deformed further by a 12th Amendment written in the early 19th century as well as the 20th Amendment and notoriously vague federal statutes, 9 notably the Electoral Count Act of 1887, codified in Title 3 of the United States Code, many of whose provisions are inscrutable. All these measures together provide such confusing instructions on how to tally disputed Electoral College votes that experts continue to debate their meaning. Given such uncertainty, the question of how to choose between competing slates delivered by the same state would almost certainly degenerate into a pure partisan power struggle in which Republican Members of Congress – under strong pressure from a hyper-mobilized GOP base probably better led than in 2020 – would likely vote to certify falsified Republican slates and Democratic lawmakers for veracious ones.

The refusal of most of the GOP House caucus to certify Biden’s victory in 2020 lends credence to this prediction. For one of the few clear passages in Title 3 instructs Congress to certify a slate if it is the only one submitted and if no appropriate legal authority in that state (such as its Supreme Court) objected to it. Despite this clear language, fully 2/3 of the Republican House caucus rejected several such slates in a show of raw partisanship.



NEXT

We have seen, in two parts of analyst Sean Dobson’s account this week, the shape of the failed Trump coup in 2020 and the many flaws in our electoral system that could be far more exploited by an organized post-Trump white-supremacist GOP right core at the  next opportunity. What are the ways that pro-democracy forces could contest those strategies – not only the obvious ones that happen before, during and even after Election Day but the less-visible vulnerabilities that require legislative and executive action sooner rather than later? In the third of four parts, the activist  path is laid out that will be required to mount the best defense against a likely more coherent GOP takeover attempt. Keeping police and the military neutral and militias weak are critical tasks, as is reining in the unchecked power of social media and the Russian trolls who surf it.  As we find, “Nothing in the US Constitution or federal law specifically mandates that the President be popularly elected” and that leaves the field open for a lot of GOP mischief that must be fixed legislatively.


Sean Dobson is board chairman of Progressive Maryland and a longtime progressive activist in the state. Reference notes for this and subsequent installments can be found at the conclusion of installment IV