Thursday, September 24, 2020

Got Paranoia? Barton Gellman's Nightmare

Via Robert Graham

So yesterday was the day of Barton Gellman's nightmare 3 November scenario in The Atlantic ("The Election That Could Break America"), for the series of developments that will lead to a worse crisis than you've successfully imagined:

  • Biden wins the election, but not in anything like a landslide, thanks in part to the suppression of Black and youthful votes, and, crucially, not so the networks can call on the night of 3 November itself, as the in-person votes get counted and the vast number of mail-in ballots take longer—perhaps Trump is actually well ahead in the count as we're going to bed, in a case of the "red mirage" reflecting the difference in the way Democrats and Republicans are voting in the pandemic;
  • Trump refuses to concede when the election is called, claiming vast fraud in the mail-in vote, as he's been preparing to do in speech after speech since 2016;
  • an army of Republican lawyers slows the count down to glacier speed, contesting every postmark and signature, and around the most contested states disorder spreads, beginning with 2000-stye "Brooks Brothers riots" and devolving into competing demonstrations with fistfights at the margin;
  • Trump declares an emergency, and DHS forces take custody of the uncounted ballots;
  • by 35 days after the election, on 8 December, when states are required to submit their lists of electors, certain Republican state legislatures where Biden is now ahead in the still unfinished count, under cover of the suspicion of fraud spread by Trump forces over the past four years, move to name their own sets of Trump-loyal electors, as nothing in the Constitution prevents them from doing (the tradition of naming the electors on the basis of the state's popular vote is one of those norms we haven't been able to stop Trump from breaking, enshrined in most state laws, but in this horror movie, the legislatures can overcome that)—think Texas, Georgia, Florida, Arizona, but also North Carolina, Michigan, Wisconsin, and Pennsylvania;
  • six days after that, on the 14th, the Electoral College is supposed to meet in the Capitol in Washington and formally elect the president, but now there are two sets of electors in different states—one in Washington recognized in the normal way as a result of the election count recognized by the House of Representatives, and another one appointed by the state legislature meeting perhaps in the state capitol giving the Republican Senate (Mike Pence, president) a pretext for rejecting them;
  • if the election has turned control of the Senate over to Democrats, the crisis can start ending on 3 January, when the new Congress takes office, but if it hasn't, as seems more likely in the kind of close election we're talking about, the impasse continues right up to Inauguration Day on 20 January, when Democrats will claim (correctly) that the Trump-Pence term is over and Speaker Pelosi becomes president by default, while Republicans will claim (wrongly, but with who knows what kind of backing, including by armed militias) that Trump is still president; and
  • the United States is officially broken.
OK, so the good news, as I learned late last night from a Twitter thread by the admirable nonfiction writer Teri Kanefield, is that this perfect storm, unlike the perfect storms of 2000 and 2016, is not going to happen, for sure, because the central element of the state legislatures appointing the electors can't take place without the consent of the governors, and the Democratic governors of North Carolina, Wisconsin, Michigan, and Pennsylvania (and perhaps the Democratic secretary of state in Arizona) won't play ball, and the legislatures won't have the votes to override vetos. And without those states Trump can't construct a win, So Biden will be duly elected after all.

The bad news in the first place is that Trump really won't concede, as he confirmed himself yesterday:

Will I Commit to a Peaceful Transferral of Power After the Election?

by Donald J. Trump

We’re going to have to see
what happens. You know that I’ve
been complaining very strongly
about the ballots, and
the ballots are a disaster.
Get rid of the ballots and
you’ll have a very peaceful —
there won’t be a transfer, frankly.
There will be a continuation.

And as, I think, we learn from Gellman's informants, especially the Pennsylvania Republicans who told him they really were thinking about the appointment of a slate of electors:

“I’ve mentioned it to them, and I hope they’re thinking about it too,” Lawrence Tabas, the Pennsylvania Republican Party’s chairman, told me. “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution.” He added that everyone’s preference is to get a swift and accurate count. “If the process, though, is flawed, and has significant flaws, our public may lose faith and confidence” in the election’s integrity.

Jake Corman, the state’s Senate majority leader, preferred to change the subject, emphasizing that he hoped a clean vote count would produce a final tally on Election Night. “The longer it goes on, the more opinions and the more theories and the more conspiracies [are] created,” he told me. If controversy persists as the safe-harbor date nears, he allowed, the legislature will have no choice but to appoint electors. “We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law.”

In fact Pennsylvania law clearly requires the popular election of electors by the usual method—

The nominee of each political party for the office of President of the United States shall, after his nomination by the National convention of such party, nominate as many persons to be the candidates of his party for the office of presidential elector as the State is then entitled to. If for any reason the nominee of any political party for President of the United States fails or is unable to make the said nominations within the time herein provided, then the nominee for such party for the office of Vice-President of the United States shall, as soon as may be possible after the expiration of thirty days, make the nominations. The names of such nominees shall be certified immediately to the Secretary of the Commonwealth by the nominee for the office of President or Vice-President, as the case may be, making the nominations. Vacancies existing after the date of nomination of presidential electors shall be filled by the nominee for the office of President or Vice President making the original nomination. Nominations made to fill vacancies shall be certified to the Secretary of the Commonwealth in the manner provided for in the case of original nominations.

assigning all the certification authority to the Secretary of the Commonwealth (Democrat Kathy Boockvar), and doesn't make provisions for an alternative approach. If the legislature wants to take it over, the US Constitution can't stop them, as we've been told, but they have to write a new law first, and there's no possibility Governor Tom Wolf will sign it.

So why are they telling Gellman that's their plan? Why is Trump openly suggesting he'll do something he won't be able to do? (Try to imagine the mechanism by which DHS thugs seize all the uncounted ballots from the poll precincts of 57 state and territory electoral systems, and the order Billy Barr will write to persuade them to comply, and you'll see how inconceivable it is.)

For the Pennsylvanians, of course, there's some standard hold-back-the-vote strategy, as my friend Frank suggested

As to Trump himself, Kanefield has a theory about that too, at her blog: it refers back to Vladimir Putin, and perhaps more relevantly Benito Mussolini, and it suggests that strongman claims are often "designed to be overestimated", claiming an invincibility they don't actually possess, on the expectation that they'll baffle people into letting them get away with it at least some of the time. Trump constantly asserts himself as an unstoppable winner in business, in literary endeavors, in love affairs, and in politics, a possessor of "great genes" and "big brain", irresistible universal charisma, extraordinary policy chops, and mastery of the arcana of administration, as part of the long con, and his henchmen follow suit.

Often they don't get away with it! Trump has been stopped as president from many horrible things, from banning Muslims from entering the United States to building the stupid wall, from overturning Obama institutions from the Affordable Care Act (so far, but I'm convinced it will outlast him no matter how the Supreme Court is constituted when oral arguments are heard in December because of the unacceptable consequences) to the DACA program, from assassinating Bashar al-Assad to nuking North Korea. He gets away with those things where somebody with the real power, whether it's the General Services Administrator letting him have his hotel or the Senate Majority Leader trying to help him move the FBI out of the neighborhood (which seems to have failed so far), gives him an assist. But he also often manages to drag things out, through endless stonewalling, with his arms folded in that petulant 8-year-old posture, bobbing and weaving, to a point where you can hardly remember what winning would consist of.

Which is in the end, I think, what they really have in mind for the election, just dragging it out, in the hope that something will turn up. They don't actually have any ideas at all, but they can stall for all it's worth. It's going to be really unpleasant. The best thing we can do remains, of course, the landslide victory for Democrats, in the presidential contest and in the Senate. Everybody must vote!

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