Holy cats, it’s October!
… and that is the only “October surprise” I have the energy for.
What stopped surprising me almost a decade ago was the lengths/depths to which GOP state lawmakers will go to ensure the Republican party holds on to power.
What does surprise me now is that some political observers seem to think GOP state lawmakers will respect things like “laws” and “norms” and “constitutionality” as Trump and his cronies work to execute their overt scheme of using these legislators to help him steal the election.
Some Very Smart People have issued some excellent scholarship lately pointing out the ways in which GOP-controlled state legislatures totally cannot usurp the Electoral College.
Like this piece, which has an Extremely Reassuring title:
A State Legislature Cannot Appoint Its Preferred Slate ofElectors to Override the Will of the People After the Election
Oh, okay! Whew! I guess we’re good then.
Except … we are totally not.
The legal arguments are sound! And yes, screwing with the appointment of electors is very illegal and very unconstitutional and also bad!
But the problem with this paper is best demonstrated by this one bit:
Once a state has held an election, a state legislature’s post-Election Day appointment of its own preferred slate of electors not only would contravene this fundamental democratic norm; it would also violate federal law requiring that all states must appoint their electors on Election Day
Imagine thinking that Republican lawmakers care about contravening a “norm.”
Campaign Action
Or that they care about doing something that “violate[s] federal law.”
I’ve spent the past ten years of my life pestering anyone who would listen (… and some who would not listen but I was too excited by my subject matter to notice) about the myriad ongoing ways in which Republican state legislators stomp on norms and sneer at federal law.
The piece is super reliant on the definition of a “failed” election, which, well … doesn’t actually exist.
- As the authors point out: “Congress has never expressly defined what would constitute an election failure.”
I’m not saying this is a correct interpretation.
In fact, it’s definitely not.
But it’s one we should be prepared for GOP lawmakers to run with.
Anything else is just naïveté.
If you think Republicans actually care that doing something like, say ...
- trying to invalidate or just not count millions of Democratic-leaning mail-in ballots to sow confusion and create a circumstance where they can claim some kind of “justification” for submitting slates of Trump electors despite Biden winning a given state
… is “illegal” or “norm-defying” or “unconstitutional,” well, please allow me to take you on a little jaunt down memory lane.
Do Republican lawmakers care if something is unconstitutional?
- Just ask North Carolina Republicans how much they cared when their state’s highest court kept blocking their repeated attempts to usurp the Democratic governor’s elections authority.
- And let’s not forget that North Carolina Republicans hoped to benefit for years as their extremely unconstitutional 2013 voter suppression law—passed almost as soon as Shelby County v. Holder’s gutting of the Voting Rights Act freed the state from preclearance requirements—wound its way through the courts (they got one election cycle out of it—2014—before the courts finally struck it down).
- The GOP knew full well that the law’s voter-suppression provisions "target[ed] African-Americans with almost surgical precision," as federal judges famously asserted.
But what did they have to lose by passing it and benefiting from its effects for as long as possible?
Not a damn thing.
Do Republicans give the first fig about norms?
- Absolutely not.
- Republican state legislators gleefully threw legislative norms and traditions out the window when they gained trifecta power in states across the country after the 2010 elections.
- The most well-known example of this spurred the 2011 Wisconsin Senate walkout.
- You may recall that the issue at hand was the dismantling of public sector unions.
- But what you may not recall is that Democrats left the chamber not in hopes of blocking the legislation, which they did not have the numbers to do (the Senate was 19 R/14 D at the time), but as a way to both create negotiating leverage and to protest the violation of norms that had been perpetrated by the Wisconsin GOP.
- The anti-union measure was foisted on Democrats without warning as part of what was usually a deliberative, somewhat protracted budget process.
- I recall talking with then-Democratic Leader Mark Miller and how he lamented the fact that newly-elected Gov. Scott Walker and the new GOP leadership in the legislature were throwing traditions of collaborative governance and collegiality in the crapper.
- But Republicans knew then, as they know now, that norms are for suckers.
Are Republicans disinclined to change the rules because they’re obviously afraid of losing the game?
- You betcha.
- Again, let’s visit North Carolina.
- In 2018, Tar Heel GOPers tried to undo a law change they themselves passed in 2017 specifically designed to impact the 2018 elections by allowing any candidate running for office to change his or her party affiliation right up to the time they officially file as a candidate.
- When an until-just-before-filing-Democrat signed up to run as a Republican in the 2018 state Supreme Court race, his new party feared he would undermine the chances of their candidate of choice by splitting the GOP vote two ways (vs. the sole Democrat in the race).
- In response, Republicans rammed through an obviously ex post facto piece of legislation that would have prevented the newly-converted GOPer from running as a GOPer (they had veto-proof majorities at the time, so Democratic Gov. Roy Cooper’s rejection of the bill was effectively useless).
- A lawsuit was swiftly filed to block this obviously unconstitutional new law, and an injunction followed almost as quickly.
- In the end, the two Republicans appeared on the ballot.
- The Democrat won the election (she likely would have anyway).
- Republicans eventually took the L and dropped the matter.
- But they’re not idiots.
- They knew courts wouldn’t allow them to change the rules in the middle of the game, if you’ll pardon the extremely tired and frustratingly trivializing metaphor.
- But the point is that they went for it anyway, because why not?
- And of course, as an erudite reader of this missive, you know all about the brazen undemocratic maps GOP lawmakers drew for congressional and legislative districts this decade.
… okay, actually, they do care.
- They care that their undemocratic gerrymandering schemes were successful.
- What Republican lawmakers don’t care about is what the voters of their states actually want.
And all that brings us to today.
- … and last week, when I discussed the various forces at work in a GOP scheme to submit slates of Trump electors in key swing states that may actually give their popular votes to Joe Biden.
- Republican lawmakers in Pennsylvania, Wisconsin, and Michigan have given no real reassurances that they will allow the time required for every mail-in ballot to counted.
- Which, as I pointed out last week, is especially fraught, since election officials in these states can’t even begin the time-consuming process of tallying these ballots in these three key states until Election Day itself.
However!
- After the publication of this newsletter last week, the Michigan legislature passed a new law that allows clerks a 10-hour head start on opening and sorting—but not counting—these mail-in ballots.
Ten whole hours!
Yeah, it’s not a lot. But it’s something, and every little bit helps.
- But let’s keep in mind that the same Republicans who passed this bill are still fighting to overturn a recent court ruling that allows ballots postmarked by Nov. 2 to be counted as long as they’re received before election results are certified (which, as you may remember from last week, is Nov. 23).
- Also in Michigan, GOP lawmakers have not responded at all to questions about that Atlantic article that kicked off all the speculation about an elector-stealing scheme.
But!
- We do know they don’t want votes received after Nov. 2 to be counted and we know that House Speaker Lee Chatfield is a huge Trump stan.
- And if Republican lawmakers are unsuccessful in their attempt to have ballots not received by Election Day counted, what’s to stop them from convening (the legislature will still be in session), declaring a Biden victory in the state to be fraudulent and the election “failed,” and submitting their own Certificate of Ascertainment with Trump electors to the federal government?
Shame? The obvious illegality and unconstitutionality of it?
I don’t know about you, but I won’t be holding my breath.
And Wisconsin.
You know, that bastion of GOP norm-respecting and cooperative spirit.
- The Democratic state attorney general and other high-level elections officials are quick to point to state law, which does not give the legislature “a role in deciding which candidates’ slate of electors vote in the Electoral College.”
If anyone were to attempt to have our elections resolved some other way, we would fight them in court and we would win.
IF.
- He admits that possibility of Republicans screwing with the selection of electors theoretically exists.
- Republicans (who I pointed out last week are currently fighting to reject ballots postmarked by Nov. 3 but received after the election and have a history of thinking some voters’ votes should count less) were a little less … enthusiastic about rejecting the possibility of sowing confusion about which ballots should count and which electors should be selected.
- Republican Speaker Robin Vos and Wisconsin GOP party chair Andrew Hitt both claim there’s “no such effort” to screw with electors in the state.
- Vos added that “the Electoral College has worked for more than 200 years” and that he supports “the current system.”
A. Only a Republican could think that the Electoral College has “worked” for the past 200 years when two of the past three GOP presidential election victors failed to secure a majority of the popular vote.
B. “The current system” is incredibly nonspecific.
This aside, Vos’s take is far from the strong rejections of this scheme given by non-Republicans in the state.
- And a UW-Madison professor helpfully pointed out that “the only exception” to state law requiring that electors be allocated to the winner of the popular vote in the state would be if Wisconsin failed to produce election results.
There’s that word again. Failed.
"To me, that's the one ambiguity that's still sitting out there as a possible path for the Legislature to get involved," Burden said. "They would have to declare somehow, or perceive, that the election was so problematic that they can't trust the results and that they believe they know who the real popular vote winner is, but it's not really reflected in the totals that are being reported."
- And Trump has already been telling us for months that mail-in ballots are problematic and untrustworthy.
- It’s not much of a stretch to imagine Republican lawmakers claiming that the real winner isn’t “really reflected in the totals that are being reported.”
- And if you think a Biden win in Wisconsin is safe because the legislature isn’t in session after the election, I’ve got some bad news:
And now let’s return to Pennsylvania, which—via some very disturbing comments made by state GOP leaders to The Atlantic—has established itself as Ground Zero in this mess.
- “Three Republican leaders”—one of them the state party chairman and another the Senate majority leader—admitted to the author of that piece that they’ve already discussed the direct appointment of electors among themselves; one confessed to discussing it with Trump’s national campaign.
- The GOP chair made specific reference to the possibility of the “public” losing “faith and confidence” in the integrity of the election “if the process … has significant flaws.”
- And as we know, Trump has been hard at work trying to establish mail-in ballot counting as such a “flaw.”
- But Pennsylvania Republicans are working on laying the groundwork for establishing other supposed “flaws.”
- This week, a committee in the GOP-controlled Pennsylvania House voted along party lines to pass a resolution (read: Democratic Gov. Tom Wolf can’t veto it) establishing a “Select Committee on Election Integrity” charged with investigating and reviewing “the regulation and conduct of the 2020 general election.”
- This committee will be made up of three Republicans and two Democrats, has subpoena power, and is authorized to “prepare and file pleadings and other legal documents” (emphasis mine).
… like, say, a certificate of ascertainment for Trump’s electors ..?
- The subpoena and investigatory power the resolution endows this “Select Committee” with with the power to find supposed “facts” designed to demonstrate that the election was not run properly or fairly.
- … which could be grounds for a supposedly “failed” election.
- The resolution appeared “out of nowhere” on Wednesday—the day after Trump claimed during the debate that “bad things happen in Philadelphia” (he also encouraged his supporters to intimidate voters at polls there, but that’s a whole other matter).
- The next stop for this resolution is the House floor, where it’s expected to pass.
- But this isn’t done—lawmakers are scheduled to convene again on Oct. 19, and they may opt to return sooner.
Surprise!
Speaking of surprises, there’s another fun fact about Pennsylvania very much worth noting in this context.
- Unlike most other states, new Keystone State lawmakers don’t wait until January for their terms to begin.
Why do we care?
- Because the Pennsylvania House is in play this year.
- Pennsylvania GOPers aren’t just playing ball with the Trump campaign to save his hide—sowing doubt around and not counting heavily Democratic absentee ballots will help them cling to their legislative majorities, too.
- But if Democrats can flip a chamber here in November, they can put a stop to GOP chaos before electors are officially credentialed (Dec. 8) and well before they’re scheduled to convene to officially cast their ballots for president (Dec. 14).
[[lifts hand to ear in anticipation of the whooshing sound made by Democratic dollars flying into Pennsylvania statehouse races]]
Welp, that’s enough spooky stuff for one week.
I don’t mean to scare you. But we can’t afford to be caught with our ballot envelopes flapping in the breeze.
And if I had a nickel for everyone who tried to reassure me over the past week that the possibility of GOP lawmakers sowing enough fear and confusion to disrupt election results and possibly usurp the Electoral College is farfetched at best and hyperbolic and alarmist at worst … well, if pay phones still existed, I could place a local call or two.
And I’d call you.
And I’d tell you to take care of yourself.
Because this fight isn’t going to be over on Nov. 3.
And you’re important.
We need you.