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Heard this short report on NPR today. Thought it was worth researching and passing along.
Basically it’s about the groundwork that the GOP is preparing to enable them to carry out a “bloodless coup” — the next time their chosen candidate fails to win the Election fair and square.
It relies on the arcane provisions of the 1887 Electoral Count Act, to throw out their state’s slate of Electors — based on the actual vote count — and replace them with a slate of Electors of their own choosing. The Act provided this power to state legislators in anticipation of “natural disaster” disruptions of local elections. The GOP operatives behind the blatant misuse of this provision — intend to use “technical disasters” instead, to overturn the will of the Voters of their states.
Written memos by the operators of the last administration document the steps of this “bloodless coup” scheme. They came very close to succeeding. We would be wise to correct the ‘legal loopholes’ that state legislators are STILL actively exploiting — which just might let them throw out the vote results that they don’t like, the next time around …
Here’s the link to the NPR report: www.wnycstudios.org ... It is well researched, and drills into the details of the Democracy-in-the-Balance story. The host interviews Rick Hasen, an expert in the field, who recently gained fame by claiming he was “scared shitless” about the subversion possibilities, on cable news. Professor Hasen says he feels a bit like an early Climate Change scientist “trying to sound the alarm” — while too few are interested in heeding the warnings, as something urgent.
I know that feeling. So I thought I would lend him a hand.
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Here are some key excerpts from Hasen’s research on the topic [emphasis added]:
Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States
Richard L. Hasen — University of California, Irvine ~ School of Law
[pg 9]
In addition to reaching out to state officials, Trump was working with a deputy attorney general in the Justice Department, Jeffrey Clark, to get DOJ to weigh in on election disputes by falsely claiming fraud cost Trump the election. Clark prepared letters that would have had DOJ falsely claim that there were serious irregularities in the conduct of the election in states where Biden won, and he pushed for DOJ to file federal litigation in the Supreme Court mirroring the defeated Texas lawsuit. Attorney General Jeffrey Rosen rejected Clark’s attempts, and Trump considered firing Rosen and replacing him with Clark, an attempt that apparently failed only because several high-profile DOJ officials threatened to resign in protest.[30]
Putting together all of these actions, the end game was to get state legislatures to rely on purported evidence of fraud to declare alternative slates of presidential electors to be submitted to Congress for counting despite a lack of authority under state or federal law to do so; to argue that the federal Electoral Count Act, which governed the counting of Electoral College votes, permitted Congress to consider these alternative slates of electors because the fraud constituted a “failed” election under the Act; to get Vice President Mike Pence to delay the counting of Electoral College votes by January 6 until enough states could declare alternative slates of electors to call the presidential election into question; and ultimately to prevent Biden from obtaining a majority of Electoral College votes, triggering a procedure for choosing the President via votes by each state’s House of Representatives’ delegation that would have favored Trump.[31]
[… pg 14]
The changed laws and continued threats and harassment of election officials has caused an unprecedented exodus of election officials, who already faced harsh conditions and budget shortfalls.[57] The loss of these officials creates two simultaneous risks to election integrity. First, lack of professionalization increases the risk of election administrator error, which in the current hyperpolarized atmosphere in the United States can further undermine confidence in the election process.
Second, vacancies in election positions in the current atmosphere may facilitate the population of election officials with those who believe the 2020 election was stolen and who may be more willing to break the rules out of a mistaken desire to level the playing field. Thousands of Trump loyalists, at the urging Trump ally Steve Bannon, have been filling positions as Republicans on local election boards, raising the serious danger of vote miscounting in future elections.[58]
II. THREE PATHS TO ELECTION SUBVERSION IN THE U.S
[… pg 20]
While it would be perfectly constitutional for a state like Arizona to give back to the legislature the power to appoint the state’s presidential electors directly, it is a political nonstarter: it would be profoundly antidemocratic to take away voters’ ability to vote for the most important office in the United States, and legislators who sought to do so would likely face the voters’ wrath. But a provision of an 1887 federal law called the Electoral Count Act provides that a state legislature may send in a slate of presidential electors when the state has “failed” to make a choice of President on election day. The section of the Act contemplates something like a natural disaster that prevents voters from casting their ballots.[80] Trump’s lawyers and allies argued that in states where Biden won, the election had “failed” because other actors besides state legislators were involved in making rules for implementing the 2020 elections, thereby giving state legislatures the ability to appoint a rival slate of electors that could be sent to Congress.[81] More generally, Republicans tried to use the federal courts slow or limit counting of ballots in cases where Democratic-controlled state supreme courts and executive branches eased voting restrictions in light of the COVID pandemic.
In Pennsylvania, for example, the state Supreme Court, applying a Pennsylvania constitutional provision guaranteeing “free and equal” elections, agreed with voting rights plaintiffs that COVID-related problems with voting justified extending the deadline for the receipt of mail-in ballots to three days after election day from the election day deadline set by the state legislature.[82] Republican lawyers argued this violated the powers of the state legislature. And in North Carolina, Trump-allied lawyers argued that state election administrators usurped the North Carolina General Assembly’s power in setting rules for conducting the election during COVID. Trump allies dropped the argument once it was clear that Trump had won the state.[83]
The argument that Article II and Article I, section 4 give state legislatures virtually unlimited powers over the rules for running presidential and congressional elections — even if it means violating the state’s own Constitution — has come to be known as the “independent state legislature” doctrine. This Essay is not the place for a full exploration of the doctrine, but there are serious reasons to doubt the muscular reading put forward by Trump and his allies in 2020.[84] Nonetheless, four conservative Justices on the Supreme Court at one point or another during 2020 expressed support for the doctrine,[85] and the other two Court conservatives could embrace some form of the doctrine as well.[86]
Indeed, under this doctrine, Justice Samuel Alito required Pennsylvania officials during the 2020 election to set aside mail-in ballots that arrived in the three days after election day for possible exclusion from the count.[87] Mercifully for the country, there were only about 10,000 such ballots, and Biden had won the state by about 80,000 votes, rendering the legal dispute moot as to the presidential election.[88]
[…] State legislatures could alternatively or in addition point to “fraud” or “irregularities” that they would declare constitute a “failed” election in the state, purportedly allowing for choosing an alternative slate of electors.
If enough states for control of the Electoral College with majority-Republican legislatures whose voters chose the Democratic presidential candidate sent in alternative slates of electors (or even blocked the sending in of the electors for the winning Democratic candidate), and if Republicans controlled both Houses of Congress, Congress could accept such bogus results and declare a Republican presidential loser the winner. Or, if the houses of Congress are divided, the stalemate could lead to several scenarios, including the speaker of the House becoming temporary President or a situation where no candidate gets the majority and voting by House delegations, likely leads to the election of Trump or another Republican choice for President.[90]
[...]
A LOT to contemplate there. As I said, many GOP state legislatures are already laying the groundwork here. So future-proofing the 1887 Electoral Count Act, to meet the modern age is essential, if we hope to preserve our Democracy “of, by, and for the People.”
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Here are some the of the corrective measures recommended by Hasen, as recounted by the author of another insightful “warning-bell” article — which explores the lackluster Media response to the recent disclosures on the Eastman Memo, documenting the same takeover scheme [emphasis added]: presswatchers.org
[...]
Even those who don’t consider the [Eastman] memo worth mentioning will, at some point, hopefully agree that perhaps a coup attempt like that needs to be more soundly preempted in the future. As it happens, election law expert Rick Hasen has a paper on just that subject that he’s presenting this week at his legal conference on “Election Subversion”:
The solutions to these problems are both legal and political. Legal changes should include: (1) paper ballot, chain-of-custody, and transparency requirements, including risk-limiting audits of election results; (2) rules limiting the discretion of those who certify the votes, including Congress through reform of the Electoral Count Act; (3) rules limiting the over-politicization of election administration, especially by state legislatures; (4) increased criminal penalties imposed on those who tamper with federal elections or commit violence or intimidation of voters, elected officials, or elected candidates; and (5) rules countering disinformation about elections, particularly disinformation about when, where, and how people vote. In addition, it will be necessary to organize for political action to reenforce rule-of-law norms in elections. This means advocating for laws that deter election subversion and against laws making stolen elections easier; politically opposing would-be election administrators who embrace false claims about stolen elections; and preparing for mass, peaceful protests in the event of attempts to subvert fair election outcomes.
We succumb to our “outrage fatigue,” at our own peril.
Because much like Climate Change, these threats to our Democracy are very real — active and ongoing. The party that bows to Trump, will stoop even further — to get force Elections to go their way.
We can count on that. Unlike our millions of votes, if these renegade schemes succeed next time around.
We’ve been warned.
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The GOP captives are stooping extremely low — to make that happen.
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Rick Hasen is the Chancellor’s Professor of Law and Political Science at the University of California, Irvine and co-director of the Fair Elections and Free Speech Center, says that those laws are just one piece of the story. He spoke with guest host Sacha Pfeiffer this week, On The Media, NPR.
www.wnycstudios.org
