I hate to be the harbinger of bad news, but, well, I have some bad news: the 2024 Presidential election has the potential to fundamentally sunder entirely America’s existing constitutional order and deliver the nation into political chaos and lawlessness. You may have seen my tweets about this last week, but I am increasingly and seriously concerned with the possibility that if Republicans have unified control of Congress after the 2024 elections, they will exclude duly certified electoral votes for the Democratic presidential victor. That would send the contest to the House of Representatives, where each state’s delegation gets to cast a single vote. Because Republicans control a majority of the House delegations, this would almost certainly result in the House electing Donald Trump as President. You will recall this is precisely what Trump tried to accomplish in January 2021 during the certification disrupted by the riot.
If you think this scenario sounds wildly implausible, I have more bad news: It’s not. Republicans will very possibly have the means, motives, and opportunity to do it in January of 2025. The law that currently controls the counting of electoral votes is badly written and has been construed in a way that makes this scenario possible (means). The Republican Party’s voter base fervently believes that the 2020 election was stolen, Biden was not legitimately elected President, and that the Democrats will try the same thing again in 2024 (motive). There’s a good chance that Republicans will pick up seats in both the House and Senate in the 2022 mid-terms, which would likely give them unified control of both of the chambers. If they maintain that control after the 2024 elections, they’ll have operational majorities in both chambers of Congress. (opportunity). The only piece that’s missing is Donald Trump running for reelection and losing. And I’m not the only person worried about this.
What exactly is Joe Biden doing about the situation? It’s hard to say. Maybe Biden has secret plans he’s not telling anyone about, but, so far, there has been no visible public action to prevent this scenario and the White House has been mum about it as a threat. That has to change. But Biden may face a bit of a paradox of his own making. He is currently relatively popular, and his popularity is partially linked to focusing on popular domestic policies and avoiding confrontational, divisive drama. That makes for less sensational headlines and more boring political reporting, but it also gives many people a sense of calm after years of Trump reshaping the Presidency into the office of the Culture Warrior in Chief. Meanwhile, because this scenario has a potential enormous downside risk and is unprecedented in recent history, some portion of voters who currently like Biden would probably prefer to stick their heads in the sand and simply hope that it does not come to pass. There’s a good chance that taking action to make this scenario less likely will disrupt the low-drama strategy Biden has been cultivating and make him less popular. Politicians don’t like to do things that make them less popular. But this is one instance where the downside risk is so grave for the country that Biden simply must take action, even if it exposes the limits of his political approach. Today in The Strong Paw of Reason we explore the limits of Bidenism and I make a case for revamping the Electoral Count Act of 1887.
I. Sleepy Joe
My general reaction to the Biden Administration has been pleasant surprise. The American Rescue Plan Act didn’t have everything I would have wanted, but it was unapologetically large and has already made progress on poverty and the pandemic. So far, the White House is not pushing for austerity measures elsewhere to counterbalance that new spending. In fact, unlike the Obama Administration in 2009-2010, the White House appears to be ignoring people such as Larry Summers who want dramatically less government spending. On top of all of that, Biden has repeatedly made a vocal case for more government spending in general and, indeed, for the efficacy and necessity of governance, a dramatic rhetorical shift from decades of tenderness and timidity about the public sector from Third Way Democrats. These rhetorical commitments to better, bigger government have to make their way through the meat grinder of Congress, of course. And the spending preferences of the likes of Joe Manchin will likely diminish the size and breadth of any infrastructure and climate bills that makes it to Biden’s desk, but Biden gets credit for fighting the good fight and putting his chips on a maximalist policy approach and offering no quarter to the deficit hawks. Recent concerns about inflation may bring a course correction, but, so far, that’s been the White House’s public stance and it is commendable.
What’s been even more pleasantly surprising has been how the Biden Administration has responded to criticism from the left flank of the Democratic party on other issues. I’ve noticed a thing on left Twitter where people have (correctly imho) grumbled about something the White House has failed to do and, within a short span of time, the White House has changed the policy for the better. It happened on US military forces in Afghanistan. It happened on the number of refugees the US was planning to admit. It happened on US vaccine hoarding and then again on vaccine IP rights. In each case, left twitter was buzzing about shitty policy and then Biden’s team responded by doing some (if not always all) of what left Twitter was asking for. I don’t want to impute too much causality here. It may be the case that they were already planning to make the changes when the grumbling happened—this seems likely on Afghanistan—but the reporting on the refugee issue, for example, seems to suggest that the timing and substance of the policy was, in fact, shaped by criticism from the left. You can argue that, on all of these issues, Biden hasn’t gone far enough and needs to do more—way, way, way more needs to be done on the border and vaccines—but my read is that, at the least, Biden is more sensitive to criticisms from his left than any Democratic administration in my lifetime. (Yes, yes, that’s a very low bar.)
This is a big change from the normal operation of the Democratic party. Historically, Democratic politicians loved to be criticized from the left precisely because they saw that criticism as an electoral asset. They could burnish it as evidence of their anti-communism and, more recently, sober moderation. Hippie punching was a beloved Democratic pursuit, but the times, how they do change. And it’s a good change, and not just because left critics are often correct, but also because it suggests Biden is not naive about the electoral and legislative realities he faces. Those realities include the desperate need for a highly mobilized Democratic base in the mid-term elections and the fact that Congressional Republicans won’t cooperate in any meaningful way on Biden’s legislative agenda. The reality is also informed by the GOP’s ongoing transformation into a pity party for white ethno-nationalists. That rightward veer means that Biden has more room to maneuver to his left without alienating the shrinking pool of swing voters. Again, I worry about imputing too much causation here. I don’t think the issue is that Biden is secretly more sympathetic to left policy objectives than Obama or Clinton were. I think he is probably responding to the political terrain, and more effectively than Obama did in 2009, and that just happens to mean he has to care more about his left wing. (By extension, I think there’s a strong case to be made that Obama didn’t care enough about his left flank and it deepened Democratic losses in 2010.)
One thing Biden has not done is wade into our Forever Culture War. He’s not casually opining on divisive controversies he has no power to influence. He’s not constantly Tweeting a bunch of incendiary bullshit. He’s not making rambling, whiney speeches to huge packed audiences of hooting chuds. He’s not picking fights with media celebrities and sports stars. And, most importantly, he’s not wasting his time bitterly arguing with his predecessor. When Trump appears in the Biden team’s communications, it’s usually for the rather bland, conventional, and frequently honest purposes of pinning the mess on the last guy. Every modern Presidential Administration does this, and I see no evidence that Biden is doing it more than anyone else. Besides that, the major communications strategy of the White House is that less is more, and not just on the topic of Trump. They seem to be about their business and trying to turn down volume, drama, and personal grievances. I’m sure they’re only hiding their personal grievances—or trying to—but that’s clearly the strategy.
More than good policy—and there has been good policy—I suspect this tonal shift plays a major role in Biden’s healthy approval rating. Unless you really liked the guy, Trump was exhausting. He was constantly clamoring for your attention, and the dynamics of how American media functions meant that he got it. This was, for a period, a political asset for Trump. It made his competition seem small and reactive, and it sometimes drove media coverage in ways that helped him. But it proved to be a huge liability during the pandemic. People were incredible stressed and many basically rallied to leaders who calmed and reassured them even when the politicians in question (see Cuomo, Andrew) were not doing a very good job. It’s not clear to me if this was because people were willing to give politicians a pass for failing to fix a catastrophe that was mostly not their fault, or if it was just because it’s really hard to fix cause to effect in the middle of a catastrophe, but, regardless, many people just wanted the one thing Trump could never offer them: less noise. My belief is that if Trump had received some sort of personality transplant that allowed him to be even marginally less narcissistic and impulsive in his personal style, he would have sailed to reelection and he would now be enjoying some of the highest approval ratings of his Presidency. In fact, I think that if he had simply avoided personally getting Covid-19, he would have at least eked out a victory. But he didn’t do that. Trump was Trump. He was exhausting. And he lost.
Biden, though? He’s so calming you could say he’s a snooze! Trump tried to lean into this by giving him the Trumpian appellation of “Sleepy Joe,” but it didn’t work. It turns out a solid majority of American voters thought “sleepy” sounded kinda nice and relaxing. In any case, I get that Biden used to be a pretty punchy dude, but he really seems to have mellowed with age. And the communications strategy is to keep him away from the cameras as much as possible. This means that the press is not scrutinizing American militarism with as much vigor as it should—when has it ever?—and Biden is undoubtedly getting too much deference and charity from journalists who were deeply antagonistic to Trump even when they were inadvertently accepting his issue framing. As much as I find Glenn Greenwald’s Twitter personality noxious, he is correct that a healthy relationship between politicians and the press should be characterized by aggressive skepticism, and that just isn’t what Biden has received so far. Regardless, the general effect has been that political coverage of the White House has been quiet.
For many people, that’s an enormous, welcome change and it explains why even some people who didn’t vote for Biden seem now to have relatively warm feelings towards him. (His approval ratings exceed his vote share by a good margin.) It also explains why many Extremely Online People are trying to fill the void they once filled with Trump’s tweets with an endless series of meaningless Culture War outrages: “Sharon Osbourne/ Dr. Seuss/ Mr. Potato Head/ We didn’t start the fire.” All of this plays to Biden’s advantage. Let the wokes and anti-wokes duke it out on Twitter. Let them rage and fight and howl and yell. Who cares? People who want noise can go there and be noisy, and nobody else has to listen to it. Biden can feed the Democratic base with solid policy achievements and calm the seas of the political media landscape.
Bidenism has been characterized by a non-confrontational approach to domestic politics and that has been a popular and welcome departure from the mania of the Trump White House. It’s a good approach right up until the moment when it’s not. The problem is that it has a fatal and visible limit. Little of this matters if Biden doesn’t address the looming catastrophe of 2024 and, to do that, Biden is going to have piss some people off and angry up the waters he’s been calming. To secure democratic institutions for 2024 and forestall the variety of clearly telegraphed anti-democratic malfeasance Republics have planned, Biden and his team are going to need to get pushy, loud, and confrontational, both with Republicans and with Democrats in Congress. Any they’re going to need to do it sooner, rather than later, because 2024 could be very bad.
II. Storm Clouds
[Samuel Tilden, looooooooser of the Presidential election of 1876.]
Here’s the storm: in 2024, Congressional Republicans have unified control of Congress and they refuse to certify Biden’s (or any Democratic winner’s) electoral victory and, as a result, the election is decided by the House of Representatives, which then makes Donald Trump President. If Democrats and the country acquiesce to this course of events and Trump then becomes President, Biden’s policy achievements, however you judge them, would be fleeting in several senses: First, unified control of Congress, the White House, and the Supreme Court would see the immediate reversal of many of these policy gains. Second, this would effectively dynamite the existing Constitutional order and hand rule to an ethno-nationalist party that represents an aggrieved minority of voters illegally seizing power. Not good! Third, even if Trump couldn’t or wouldn’t do all the worst stuff you can imagine in his second term—suspend the writ of habeas corpus for the woke, abolish Social Security, lock up degenerate weirdos like me—and even if he kept some of Biden’s better policies, the second thing would be so bad as to grossly outweigh any of the good stuff Biden did that made a lasting mark. Nobody cares about the merits of James Buchanan’s tariff policy; his catastrophic Presidency laid the groundwork for a long and bloody Civil War. Expect a similar accounting of the Biden Presidency if it ends this way.
But that wouldn’t be constitutional, you say! On that front, I have some distressing news. The constitution? She ain’t all that she’s cracked up to be. In fact, the US constitution is an absolute shit-show. American culture has been able to paper over this fact with a tradition of self-delusional civic religion about the document. Behind the scenes, armies of clever lawyers have constantly remade law and precedent to keep racial capitalism and settler colonialism on a steady keel, giving the very false impression that we’re following the rules set down in 1789 rather than just making things up as we go along. But if we’re being honest with ourselves, it’s a badly outdated document that wasn’t all that good to begin with. Nowhere is this more apparent than in the case of the Electoral College.
The mainline criticism of the Electoral College is that it’s grossly undemocratic. That’s true and it should be abolished on those grounds alone! The more boutique but also correct criticism is that the actual mechanical functioning of the Electoral College is grossly under-defined in the Constitution (and by statute) and, as a result, it is a rickety institution in surprisingly banal ways. Here’s the entire relevant text of the constitution on the subject:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
That’s it! This minimalist approach could square with the way that people in the Early Republic conceived of the Electoral College as a body that was supposed to engage in substantive political deliberation and therefore would write its own rules. But it has since evolved through norms and law to be mostly mechanical in its operation and not a place where you are supposed to settle political beefs. We’ve ass-covered that transformation through “norms,” but—and I don’t know if anyone else has noticed this too—“norms” are no longer effectively constraining one of the two major political parties quite as well as they used to. In other words, there’s a good chance the Electoral College is going to stop working as a reliable vote counting mechanism long before anyone gets around to abolishing it because of principled theoretical objections. What happens then is unclear, but it I don’t think it will be good. This was brought into clear focus in January when, for the first time in recent memory, the counting of Electoral College votes was for a moment, first, peak political drama and, then, an actual riot.
As you’ll recall, as it became clear that the relevant election officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin were all going to certify Biden victories in those states, rightwing commentators increasingly began to urge the Republican controlled state legislatures to set aside the results and directly appoint slates of electors favorable to Trump through special joint legislative resolutions. It’s not clear that this would have been legal according to state laws, federal statute, or constitutional, but it never happened. Publicly, GOP leaders in those states declined to entertain it, but it’s hard to tell how much support there was for the idea behind the scenes. We do know that Trump invited Michigan’s Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield to a meeting at the White House on November 20, the week before Michigan’s certification. Shirkey and Chatfield maintain that Trump only asked them about the certification process but did not pressure them to try to switch in his electors. Trump’s preferred method in Georgia, by contrast, was to directly bully the Secretary of State Brad Raffensperger and Governor Brian Kemp, both Republicans, into doing something, though what exactly he expected them to do was not really clear. This meant that all of Biden’s wins were ultimately duly certified and only Biden’s electors were presented to Mike Pence as the President of the Senate on January 6. Republicans congresspeople could and obviously did object to counting electors from Arizona and Pennsylvania. Current law stipulates that both chambers must agree to an objection to effect the exclusion of electoral votes, and, because Democrats controlled the House, the objections were dead in the water and Biden’s victory was sealed. Unless something really wild happened. something like a riotous mob breaking in to Congress and somehow busting up that process.
All of this proceeded according to the minimal rules laid out by the Constitution (quoted above) and a rather arcane and misbegotten piece of legislation called the Electoral Count Act that dates back to 1887. In 1887, Congress was mulling over the deadlocked election of 1876 (and the close elections of 1880 and 1884) that had nearly been thrown to the House of Representatives. In that election, Democrat Samuel Tilden narrowly won the popular vote against Republican Rutherford Hayes, but the situation in the Electoral College was muddled. Southern states reported wins for Tilden, but Republicans contested the victories in Florida, Louisiana, and South Carolina on the basis of credible accusations of fraud, intimidation, and violent suppression. (There was also some weirdness about Oregon’s electors.) Both Hayes and Tilden electors wound up being presented to the Senate, with a hodgepodge of different Democratic and Republican officeholders signing certifications and, in the case of Tilden’s South Carolina electors, a certification unsigned by anyone at all. At that time, both chambers of Congress had to agree to include a state’s electors, and since the chambers were split between Republicans in the Senate and Democrats in the House, it seemed that one or more of the contested states would be excluded from the count, denying both candidates the constitutionally required majority of electoral votes they would need to be declared the winner outright. In that case, the matter would go to the House, where each state’s congressional delegation would cast a single vote until someone received a majority. Tilden would likely have prevailed in such a vote, but everyone agreed that such an outcome might spark open violence or even possibly a second Civil War. Congress passed a law to create a special Electoral Commission to settle the dispute composed of 5 Democrats from the House, 5 Republicans from the Senate, and 5 Supreme Court Justices. They narrowly decided in Hayes’s favor, and then Hayes struck a bargain with Southern Democrats that, in exchange for their recognition, he would withdraw US military forces from the South. This bargain sealed the fate of Reconstruction and empowered Southern Democrats to intensify their campaign of organized political violence and terror against Black Southerners and their allies.
The Electoral Count Act of 1887 offered no protection to the targets of that violence, but it was (poorly) designed to prevent another deadlock like the one that had just occurred. Essentially, the act leaves settling disputed election results to the states and it reduces Congress’s role dramatically. It provides a way to adjudicate “dueling” electors, but mostly by giving Governors a sort of tie-breaking vote.
The Electoral Count Act is a long and confusing statute, so I want to focus on just one key provision: the act prescribes an “ascertainment process” at the state level. According to the statute, states have until six days before the casting of electoral votes to resolve election disputes provided that they use procedures dictated by state laws enacted before the general election. Under those circumstances, the Governor signs an ascertainment certificate that certifies the name of the official electors and the electors enclose that certificate with the votes they submit to the President of the Senate. If states do all this on schedule, these electoral votes are supposed to be given “safe harbor”:
[N]o electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected…
That is, Congress must accept votes submitted under safe harbor unless the elector unlawfully casts a vote either because of corruption or ineligibility—if the vote was not “regularly given” in the language of the statute.
Legal scholars do not interpret the “regularly given” provision to empower objections based on disputed election returns, and the easiest way to understand this is by distinguishing between two different acts that happen at two different moments: the act of appointing an elector and the act of the elector voting. The first act is what happens on the first Tuesday in November (the general election) and arguments about fraudulent election returns or hacked voting machines pertain to the legitimacy of that act. You know this is a separate act because it has a separate actor: electors are not self-appointing; they are appointed by another actor, usually by voters in accordance with state laws but, historically, also directly by state legislatures. The second and distinct act is when an appointed elector casts, or “gives,” their vote for president in December when the Electoral College meets. Again, the voters of the state are not giving their votes at that moment; it is the electors who are giving votes, it is that giving which must be regular, and therefore the provision must pertain to the actions of the electors, not to the actions of others during the process of their appointment.
This is all very confusing, and there are a number scenarios where bad actors could toss spanners in the works. For instance, state GOP election officials could muck things up by refusing to duly certify election results, GOP-controlled state legislatures could pass special joint resolutions setting aside Democratic electors, and GOP governors could refuse to issue ascertainment certificates to those electors. Because the US voting system is, relatively speaking, quite diffuse and it features high degrees of local variation, opportunities for this sort of malfeasance are numerous. The likelihood of at least some of it happening is increased by the fact that local and state GOP officials tend to have policy preferences and political styles much more similar to Louis Gohmert and Marjorie Taylor Greene than, say, Susan Collins or even Mitt Romney. All of these actions would, of course, result in lawsuits, and they are likely all illegal to some degree or another. How, if, when, which, and why courts would deal with state-level malfeasance is also a tangled issue a bit beyond my expertise to sort out. Maybe courts will issue writs of mandamus to compel state or local officials to certify results. Or it could hinge on what the current members of the Supreme Court think of an argument advanced by then-Chief Justice William Rehnquist in a concurrence, signed by Justices Thomas and Scalia, in Bush v. Gore, that gives apparent priority to state legislatures to decide the appointment of presidential electors. It’s all hard to say. It will definitely be a mess. I’m going to leave further predictions about how that mess will resolve to people with law degrees and, instead, focus on a slightly different issue.
Namely, the only enforcement mechanism for the Electoral Count Act is Congress itself and a Congress under unified GOP control could simply decide not to enforce the act against itself or to enforce it in perverse ways that undercut the clear purpose and meaning of the act. Here’s why.
When the chambers are divided, it’s hard to exclude votes that are received by the President of the Senate with ascertainment certificates. Even if a Senator and Representative object (a low bar), and even if one chamber sustains the objection (a higher bar), they still can’t exclude votes without the agreement of the other chamber (the highest bar). This is why Biden’s victory on January 6 was a fait accompli: even if somehow Republicans had mustered their entire Senate caucus to sustain Paul Gosar’s objection to the Arizona Biden electors, the Democratic-controlled House would have rejected the objection and that would have been the end of it. But not so if one party controls both chambers. If both chambers decide the same way, they can toss votes out. Effectively, this means the safe harbor provision only binds Congress so long as Congress agrees to be bound.
In fact, the handling of the objections to Arizona and Pennsylvania’s electoral votes, even though those objections were rejected, actually set a very bad precedent. As I wrote above, the “regularly given” provision of the Electoral Count Act is not supposed to be used to contest state election results, since those are the acts of the voters, not the acts of the electors. But who decides that my (obviously correct) interpretation of the “regularly given” provision is, in fact, correct? Lawyers and judges have their opinions—they agree with me—but what’s clear from January 6-7, 2021 is that Congress will debate and vote on objections to safe harbor electoral votes that are based on disputes about election results. Moreover, it will decide those objections based on majority votes in each chamber. That’s what exactly happened with the Arizona and Pennsylvania objections. It just so happened that the Trumpkins didn’t (yet) have the votes. Here’s the full text of the written objection to Biden’s Arizona electoral votes that Paul Gosar entered into the Congressional Record:
We, a Member of the House of Representatives and a United States Senator, object to the counting of the electoral votes of the State of Arizona on the ground that they were not, under all of the known circumstances, regularly given.
Paul Gosar, Representative, State of Arizona.
Ted Cruz, Senator, State of Texas.
That’s it! He just says they weren’t regularly given and, bam, the chambers debate it and they vote. In fact, the Electoral Count Vote specifies that objections “shall state clearly and concisely, and without argument, the ground thereof,” which means they’re not supposed to argue their case or present evidence. Gosar’s objection is arguably in compliance with the statute, which might mean that Pence, as the President of the Senate, was following the law when he divided the chambers and had them vote on it. Had Pence done otherwise—ruled the objections out of order, for example—he would have set a precedent that the President of the Senate can decide to exclude objections that use the “regularly given” provision as a pretext to evade safe harbor protections. But Pence didn’t do that and no one complained. Everyone in Congress and the media simply moved forward with debating the objections and letting majority votes decide. The precedent was set. Uh oh.
The way the system is supposed to work is that each chamber debates objections in good faith: Were these votes “regularly given”? According to the prevailing legal definition of “regularly given,” even if there was widespread fraud in the states in question in November, an electoral vote is regularly given so long as the elector is eligible and was not engaged in some sort of corruption or illegality when they voted. No one alleges that about the votes in Arizona; they only argue (falsely) that the election results appointing the elector were illegitimate. The complaint is not about the giving but about the appointment of who gets to do the giving. But, by the standard of the statute and the nature of the GOP’s complaints, that means that all of Arizona’s electoral votes were definitely “regularly given.” If you listened to the speeches on the objections, Democrats sometimes pointed out that the Trumpkins were misconstruing the statutory meaning of “regularly given.” That argument had no effect. The Trumpkins still got to vote. And 121 Republican congresscritters effectively voted that those votes were not “regularly given.” Double uh oh. Maybe not everyone is, as the statute seems to require, assessing whether the votes were “regularly given” in entirely good faith? And what happens if the GOP controls both chambers and the leadership whips the caucuses?
You see the problem. The system binds the GOP as long as they adhere to norms that disadvantage their immediate partisan interests. But they’ve stopped adhering to those kinds of norms. So it’s not going to bind them. And they’ve already set the precedent that they will use the “regularly given” provision to contest election results they don’t like even if it runs contrary to the plain meaning and history of the Electoral Count Act, which effectively means there is no safe harbor provision for any votes if the GOP has unified control of Congress and its leaders decide they don’t like those votes. And by excluding electoral votes cast under safe harbor, they could effectively throw the election to the House where, again, the partisan composition would almost certainly mean a Trump victory.
Could the Supreme Court step in at some point? I mean, sure, anything is possible. There may even be a clear constitutional precedent for how they would intervene and what legal mechanisms they would use. Maybe the Supreme Court would issue a writ of mandamus compelling Congress to count the excluded electoral votes? I dunno. That would be pretty wild, wilder than everything else I’ve sketched out so far. And if we’re in that territory were already in a place where it’s not clear that Supreme Court rulings have much binding normative force any more. Does still-President Biden try to enforce the Court’s ruling against a resistant Congress? Whatever happens next we’re well beyond the boundaries of a peaceful continuation or transfer of power and, indeed, it would be the effective end of the constitutional order. What comes next? Nothing good.
III. Democracy is Coming to the USA
Will the GOP try this? Predicting the future is hard! This scenario depends on a number of conditions: GOP wins unified control of Congress in the 2022 midterms and maintains it after 2024; Trump runs again and is the GOP nominee; Biden wins and it’s roughly as close (or closer) than 2020; the GOP maintains enough caucus discipline to exclude Biden electors. We can debate the likelihood of any of these things coming to pass, but the chances of a catastrophically terrible outcome are far too high for my liking.
Here’s one thing I’m definitely assuming: Republicans want to do something like this if they have the chance. To a great extent, I think Republican office holders have collectively talked themselves into believing they have to, in no small part because that would, in fact, be a defensible response if Democrats really did steal both elections. A recurring problem during the Trump presidency was that Trump surrounded himself with toadies, fired people who told him bad news, and generally poisoned his own knowledge ecosystem. And as I wrote in the “The Apophenic Thrall,” I suspect that, as a result, Trump believes—truly, fully, completely, earnestly believes—that the 2020 election was stolen from him and that Democrats will try to steal it again in 2024. Reader, search your soul: if we lived in the fantasy land where Democrats did, indeed, steal the 2020 and 2024 Presidential elections in the way that Trump alleges, what should Trump do? What would you do if you were in his position?
It’s important to interpret recent state-level legislative action around voting and elections in light of this. There’s been a good deal of liberal (and leftist) criticism of GOP voting laws in places such as Florida and Texas. The substance of this criticism is that these laws are intended to make it harder to vote and to drive down turnout among Democratic leaning constituencies. This has led various anti-anti-Trump commenters and “wonks” (*shudder*) to split hairs about how much these laws will actually effect election outcomes. I think these are substantively bad laws on the merits that will both make it harder for people to vote and make it easier for GOP officials to gum up vote counting, contest duly cast ballots, and challenge legitimate election results. But I also think that, from the Trumpkin perspective, those are mostly just welcome fringe benefits.
The real story is about symbolics of power. The laws are premised on the idea that 2020 featured widespread fraud that resulted in Biden’s victory. Votes on the laws, then, are a way for Republican officials to publicly affirm an obvious and flagrant lie, and, as we know from “The Four Lights,” such affirmations cede power to the liar and internalize the reality of the liar’s complete dominance and control. People don’t like to think of themselves as liars, so when they tell lies in public they tend to revise their beliefs about what happened in the past to conform to the lies they’ve told. In other words, it is a way of announcing that not only do most elected GOP office holders confirm Trump’s claim that 2020 was stolen, but they will also affirm similar falsehoods when Trump allege them in the future and that they will effectively believe those falsehoods to be true and respond as if they are true. Should Trump run in 2024 and lose, you can expect he will claim the election was stolen. In the meantime, anyone in the GOP who is questioning the lie is now (or soon will) be purged. That includes national Congresspeople such as Liz Cheney, but also low-level election officials such as Aaron van Langevelde, who voted to certify Biden’s Michigan victory against the GOP’s wishes. Expect the same for Brian Kemp, Brad Rafflesperger, Tony Gonzalez, and possibly even Jim DeWine. Heads will be rolling.
But can anyone do anything about all of this? Quite obviously, the easiest way to forestall this outcome is for Democrats to perform well above expectations in the 2022 midterm elections and retain control of either the House or the Senate through January of 2025. Historically, midterm Congressional elections tend to favor the party that does not hold the White House. It’s possible that Biden’s popularity, when combined with improving pandemic and economic conditions, will make 2022 an exception, but that’s far from guaranteed and, in my estimation, is probably unlikely. Because of the GOP’s disproportionate power in state legislatures, the 2020 redistricting process is, again, going to favor Republicans and I fear that alone will be enough to sweep Republicans into power in the House, where Democrats are already operating with the slimmest operational majority. Could Democrats claw their way back to a majority on the strength of Biden’s coattails? Maybe, but it’s far from guaranteed. Meanwhile, the 2022 Senate map is decent for Democrats, but whether Democrats gain or lose seats there is going to depend on the composition of the electorate and they cannot afford to lose any. And the 2024 Senate map is pretty bad for Democrats. The same class of seats in 2018 only yielded a +2 gain for Democrats in a historically good year. In any case, “do well in 2022 and 2024” is not a course of action that is substantively any different than what Democrats should be doing anyway, which, is to say, governing well and improving the material conditions of everyday life, recruiting high quality candidates for vacancies, communicating the importance of the election, and mobilizing their voters.
So is there any specific action Democrats should be doing in addition to all that? Democrats have proposed voting rights and anti-gerrymandering legislation—HR1 and the John Lewis Voting Rights Act, specifically—which, if enacted, could blunt Republican gerrymandering advantages and make it easier for everyone to vote. Again, I think those are important independent of this question and we should do them, but my intuition (and the reporting) suggests that neither of these will pass. Democrats are far from unanimous on the anti-gerrymandering provisions of HR1. A renewal of the VRA would almost certainly pass both chambers if it got a vote, but Democrats would need to change the Senate’s filibuster rules to do that and Senators Sinema and Manchin both appear hesitant to do so. In addition, neither of those pieces of legislation addresses the specific problem I’ve outlined: the antiquated and rickety law that currently governs the operation of the Electoral College. Democrats could pass both HR1 and the VRA, Biden could sign it, and if Republicans took Congress, they could still pull the stunt I’m outlining. We need to address that directly and do so in a way that would proactively address the weakness of the current safe harbor and “regularly given” provisions.
Congress should pass a comprehensive modernization of the Electoral Count Act. Election law specialists can recommend ways to tighten and modernize the ascertainment process to forestall state-level malfeasance—I assume there are plenty of changes that would be advisable—but the act should also include these two important changes:
1) It would clearly and completely define the appropriate grounds for objections to electoral votes that arrived with ascertainment certificates. Ideally, it would (a) provide a more comprehensive definition of the “regularly given” provision, (b) specify the necessary elements for an objection and require that the objection identify particular electors (rather than entire states) who had irregularly given votes as well as to indicate and define the nature of irregularity (ineligibility, corruption, etc.), (c) prohibit any objections that lacked those elements, and (d) explicitly prohibit objections based on disputed election results.
2) It should require the President of the Senate to refuse to entertain any objections that do not contain the specified elements or that are pretextual, specious, or frivolous.
For this to work, Democrats would need to push this bill forward before the 2022 midterms, while they still control both chambers. I can’t say for certain whether such legislation would stand a better chance of being enacted than either HR1 or the John Lewis Voting Rights Act. It would face the same filibuster challenges in the Senate. But I would push for it, regardless, for three reasons. First, I think, on the merits, it modernizes a key institution that has fallen on hard times. Second, the more critical voting rights legislation Manchin and Sinema are bottling up, the more pressure can be brought to bear to get them to agree to filibuster reform. Third, while comprehensive voting reform will draw media and popular attention that is likely to shore up the Republican Senate caucus, a modernization of the Electoral Count Act is so back catalogue that it might be easier for anti-Trump Republican Senators to sign on to. After all, modernizing the law essentially restores the Electoral College to its previous status as a neutral voting procedure and leaves it to individual states to resolve election disputes. The former is ideal, the latter markedly less so, but, regardless, that may be as good as we can get from Congress. I suspect that a good portion of the Republican Senate caucus would prefer not to install Trump as President via a House vote, and this might be the least politically risky way for them to do it. Of course, even if such a law was enacted, it’s not clear it would be constitutional. The Electoral Count Act has, to my knowledge, never been seriously challenged in court and an update may be unconstitutional for the same reasons as the original, chief among them the posited supremacy of state legislatures to dictate how electors are appointed.
Alas, better laws alone will not save us. The American electoral system simply has too many flaws and Trumpism is too popular to permanently prevent motivated Trumpkins from wreaking havoc. Laws, institutions, and norms can limit some of the damage for a time, but, at some point, the Trumpkins will find their way into power again, and the leaders of the Democratic party need to start talking and planning now for how they will respond to the inevitable anti-democratic policies that the Trumpkins bring.
It’s not adequate to merely oppose what’s coming. Rather, there needs to be a more candid reckoning with the fact that what we have now is not particularly democratic, or at least not nearly as democratic as it should be, and that fact is precisely what has brought us to this precarious place. The surest foundation for democracy is one in which a great majority of citizens enjoy the prosperity of democratic life and are willing and able to fight for it. Our current constitutional order no longer delivers either. If the Democratic Party does not prioritize robust and popular democracy, grounded in and growing out of mass mobilization, it will rapidly cease to be meaningful as a political force. It will be a party unwilling to address the historical forces that are rapidly eroding the very conditions of its possibility, a party driving towards its own obsolescence and irrelevance. There will still be struggle—there is always struggle—but it will find other institutional vehicles.
The limits of Bidenism, then, are these: It is a political strategy brilliantly devised for a political order that is dying and that appeals to a political and social elite grown somnolent. Trump’s merciless bulldozing of the Republican establishment and his refashioning of the party in his own image proceeded at a shocking pace and underscores how rapidly the entire political order may be remade. We do not need a soporific. We need to be roused. Biden must either spend his popularity and political capital to build a new political order or his legacy will be to perish with the old one.
ETA: As a helpful internet commenter pointed out, the electoral count vote in 2024 will be decided by incoming Congress, which means the composition of that Congress depends on how Democrats do in 2024 as well. This is absolutely correct and I’ve edited the text to reflect that fact, though I don’t think it changes my substantive points much.
ETA pt. 2: The Electoral Count Act was passed in 1887 not 1877. I’ve updated the post to reflect that and apologize for the error.