With even Joe Biden saying that Trump will try to steal the election, www.cnn.com/… it might be worth spending some time looking at how that might play out. The tried and true methods of gerrymandering and voter suppression have played out recently in Wisconsin and Georgia. Around the block lines, and even voting that wasn’t finished until the following day have been documented. Many electrons have been spent talking about those tactics and plenty of effort is being allocated to fighting those efforts.
However we also saw something else important happen in Georgia in 2016 and in Wisconsin in 2020. Even the most strenuous attempts at voter suppression and dirty tricks doesn’t always work out the way one might hope. In Wisconsin, it resulted in the election of the ‘wrong’ supreme court justice, with a defeated incumbent and Jill Karofsky taking the seat. In Georgia, we saw the current governor, Brian Kemp, push his authority as secretary of state to the limit to ensure his own victory, even to the point of destroying evidence in the face of an impending lawsuit, and things are not getting better: www.dailykos.com/.../.
Combine this with a strong perspective www.politico.com/… that Trump is ‘winning’ the roll up to 2020, republicans may feel justified in ‘unskewing’ the ballot boxes just like they ‘unskew’ the polls. Doing so in the face of a clear mandate for your opponent may be deeply undemocratic, but it can also be legal. It is worth taking a look at some of the risk factors in close states.
I’ll consider states with a margin of about 5% or less in 2016. That will show the pattern for any of the more Trump-aligned states. Also, if we start looking at more than a 7% split (say, 52-44) in the popular vote, and the republicans resort to anti-democratic tactics at that level to outright steal the presidency, we’re in uncharted territory; massive civil unrest or a spiral into civil war become real possibilities at that point.
Here’s the data to source the analysis:
State
|
Governor |
Legislature |
Link |
Arizona |
R |
R |
|
Colorado |
D |
D |
|
Florida |
R |
R |
|
Georgia |
R |
R |
|
Maine |
D |
D |
|
Michigan |
D |
R |
|
Minnesota |
D |
Split |
|
Nevada |
D |
D |
|
New Hampshire |
R |
D |
|
New Mexico |
D |
D |
|
North Carolina |
D |
R |
|
Ohio |
R |
RR |
|
Pennsylvania |
D |
R |
|
Virginia |
D |
D |
|
Wisconsin |
D |
R |
|
I’ll look at two questions. Fist, what provisions in law might there be to manipulate vote totals outside of the ballot recount and vote-by-vote challenge processes, or challenge the results of the election outright? Second, even if there is not a provision, what does the legislative makeup of the state look like? If a state is under one-party control, they could convene an ‘emergency’ session and ‘fix’ the gap in election law that is blocking such shenanigans. IANAL and certainly don’t have time to dig through hundreds of years of case law, so we’ll be sticking to the plain text of statutes for this diary.
Arizona, Colorado, Florida, Minnesota, Nevada, New Mexico, North Carolina, Ohio, Pennsylvania, and Virginia all have at least some means written in law that appear to cover ‘all other offices’, ‘all statewide offices with exceptions’ or some other catch-all text. Georgia, Maine, Michigan, New Hampshire, and Wisconsin appear to have no provision in law to contest the election of presidential electors.
The general pattern is to use some close variant of the criteria of allegations of ‘fraud, illegal votes, etc sufficient to change the outcome of the election’. The election challenge is decided based on ‘the greatest number of legal votes’. Florida allows a challenge based on factors that ‘place in doubt’ the outcome of the election. Arizona has the weakest defined criteria, allowing a court to overturn an election if "If a person other than the contestee appears to have the most legal votes cast". North Carolina is also an interesting exception in that it appears that an appeal to the legislature is possible after a court ruling.
Pennsylvania is the standout here, with clear instructions for every step of a challenge process, including an overall election integrity rule set. If there is a showing of fraud by election managers, a precinct can have their vote totals thrown out, or adjusted to remedy the fraud. In fact, Pennsylvania is also the only state that has a requirement to for anyone to prove the integrity of an election at all.
So where does that leave us? Consider if the gerrymandering and voter suppression tactics don’t work well enough to get the fix in. Only Arizona, Florida, Pennsylvania, and North Carolina have any real pathway to a partisan court or legislature based on nebulous fraud claims. All of the others rely on certified vote totals following recount. Pennsylvania’s SoS is a Democrat, and unlikely to go along with any such scheme, and asking as court to do something so blatantly partisan is a risky bet.
That brings up option #2, which is rewriting the election laws at the last minute to fix whatever mistakes let the voters pick the wrong candidate. There is a time limit on certifying electors, which suggests that a governor’s veto or challenge in court effectively blocks a legislative move. Only state with republican control of all legislative houses and a republican governor are plausible for such a gambit. That moves Arizona, Florida, Georgia and Ohio into the high risk category.
End effect: Of the close states Trump won in 2016, only Michigan, Pennsylvania and Wisconsin are likely protected from both an electoral challenge under current law and legislative gambit. The end result would be Biden 273, enough to clinch the electoral victory. What about the other side of the coin? Only New Hampshire and Nevada have a split between governor and legislature that went blue in 2016, and Republicans have a lock on 0 of them.
There is one other line of defense for Democrats in such a scenario. If ANY of the states fails to appoint electors under such a scenario, the contingency election is thrown to the House, which would be very likely to stay under Democratic control. Delay so that no electors is appointed could be a valid option, which would deny a majority of electoral votes.
Conclusion:
Assuming that there is a D+7.3 election night, I am going to predict that R’s keep Arizona, Florida, Georgia and Ohio, with a razor thin 273 EV victory for Biden, with the possible surprise pickup of Florida. My reasoning is that those same states, if they are under one-party control to the point that they could keep the fix in by legislative action, then they’ll rig the voting and the vote-counting ahead of time and never get there.