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Nothing special, one post at a time since 2012

Florida and Bush v. Gore Set the Stage for 2024

You could say the 2016 election was stolen when the Republican FBI director James Comey sent an extraordinary letter to Congress a week before Election Day to announce nothing of real importance regarding Hillary Clinton’s email. That gave our corporate media the chance to flog the email story one more time, convincing more than 78,000 wavering voters in Michigan, Pennsylvania and Wisconsin to abandon the candidate everybody thought was going to win. The 46 Electoral College votes from those three states put the Republican candidate in the White House.

You could say the Republicans stole that election, but that wouldn’t be quite accurate, because it’s doubtful the dimwitted, self-righteous FBI director was trying to steal the election when he ignored a Justice Department rule and made his last-minute, election-altering news. He was simply trying to cover his ass, fearing that his Republican friends in Congress would be upset with him if he didn’t tell them what he knew a week before the election and their guy ended up losing.

No, it was the 2000 election the Republicans actually stole.

I’d forgotten how blatant the theft was until I stumbled upon a 2001 article in the London Review of Books by law professor Bruce Ackerman. The article is called “Anatomy of a Constitutional Coup”. It explains in detail how the Republicans stole that election. Here’s the last paragraph:

Suppose I had been reporting on the recent election of Vicente Fox as President of Mexico. I would have described how a mob of Fox’s partisans stopped the vote count in Mexico City, how Fox’s campaign chairman used her authority as chief elections officer to prevent the count from continuing, how Fox’s brother exercised his position as governor to take the Presidential election out of the hands of the voters, how the Supreme Court intervened to crush, without any legal ground, the last hope for a complete count. Would we be celebrating the election of President Fox as the dawn of a new democratic day in Mexico?

Replace Mexico with the US, Mexico City with Miami, and Vicente Fox with George W. Bush and that sums up what happened to us in 2000.

If you have the intestinal fortitude to read Professor Ackerman’s fascinating article, you’ll understand why (assuming they don’t win the old-fashioned way), Republicans will almost certainly try to steal the presidential election in 2024. They got away with it in 2000. A mob of Republicans intimidated election officials in Miami; Florida’s Republican Secretary of State interfered with the vote counting; Republican Governor Jeb Bush got the Florida legislature to create an “alternate” slate of electors; and the Republican majority on the Supreme Court used their august authority to finish the job.

Let’s Not Think About It

After reading a couple opinion pieces in The Washington Post, I was thinking about presenting one or both of them here. One, by Max Boot, is “We’re in danger of losing our democracy. Most Americans are in denial”. The other, by Margaret Sullivan, is called “Democracy is at stake in the midterms. The media must convey that”.

I assume you know the problem. Despite the January 6th insurrection (or because of it), most Republicans want the leader of their cult to run again in 2024. In various ways, they’re trying to make sure he becomes president again whether or not the Democrat gets more votes. What the mob tried to achieve on January 6th, 2021, millions of Republicans would like to accomplish in 2024 using their official powers to restrict voting rights, manipulate elections and change the Electoral College result.

Quoting Margaret Sullivan:

A growing chorus of activists, historians and political commentators have spoken of “democracy on the brink” or “democracy in peril.” What they mean is that, thanks to a paranoid, delusional and potentially violent new strain in our nation’s politics, Americans may not be able to count on future elections being conducted fairly — or the results of fair elections being accepted.

If you have unpopular views in a democracy but want to get and keep power anyway, you need to make it difficult or even impossible for your opponents, the majority, to win elections. You can do that by controlling who gets to vote, who counts the ballots, who reports the news and who runs the legislatures and courts. After January 2025, when the plague could return to the White House, it might take a revolution to restore majority rule. Once it’s lost, it will be hard to regain.

Quoting Max Boot:

The only way to save democracy is to vote for Democrats in the fall. And I say that as an ex-Republican turned independent. It doesn’t matter if you disagree with Democrats on some issues. The overriding issue is the preservation of our democracy. That might sound hyperbolic to some — but that’s precisely the problem. Like so many Ukrainians before [the invasion] on Feb. 24, most Americans remain in denial about the threat to our country.

But I’ve been sounding like a broken record on this topic (it’s an old metaphor that refers to playing the same music over and over). That’s why I decided not to post about it.

So take a look at this:

Drawing

When I was a kid, I came across a puzzle that looked like that. The challenge was to draw a picture just like it, with a rectangle, an X inside it, and triangles around the edges. The challenge was to draw it without lifting my pencil from the paper. In other words, to draw it in one uninterrupted motion.

It was not easy to do. But at some point, I was sure I’d done it. I just couldn’t remember exactly how. My apparent success motivated me, however, to keep trying. That may not have been a good idea.

What I didn’t know at the time, but do now, is that mathematicians have a name for this kind of puzzle. The challenge is to find the “Hamiltonian path”, a sequence that doesn’t retrace its steps. Some patterns have a Hamiltonian path; some don’t. The one on the left does; the one on the right doesn’t.

Drawing2

Computer scientists are trying to figure out how to solve puzzles like this — to identify which patterns fall into which category — without their computers taking too long, possibly forever. One way to avoid thinking about Republicans and elections is to work on the one above that I either did or didn’t solve.

Their Plan to Steal the 2024 Election (While Simply Following the “Law”)

J. Michael Luttig, a conservative appointed by President George H. W. Bush, was a US Court of Appeals judge for 15 years. He advised Mike Pence on January 6. Here he explains the Republican plan to “legally” steal the next presidential election. From CNN:

Nearly a year and a half later, surprisingly few understand what January 6 was all about.

Fewer still understand why former President T____ and Republicans persist in their long-disproven claim that the 2020 presidential election was stolen. Much less why they are obsessed about making the 2024 race a referendum on the “stolen” election of 2020, which even they know was not stolen.

January 6 was never about a stolen election or even about actual voting fraud. It was always and only about an election that T____ lost fair and square, under legislatively promulgated election rules in a handful of swing states that he and other Republicans contend were unlawfully changed by state election officials and state courts to expand the right and opportunity to vote, largely in response to the Covid pandemic.

The Republicans’ mystifying claim to this day that T____ did, or would have, received more votes than Joe Biden in 2020 were it not for actual voting fraud, is but the shiny object that Republicans have tauntingly and disingenuously dangled before the American public for almost a year and a half now to distract attention from their far more ambitious objective.

That objective is not somehow to rescind the 2020 election, as they would have us believe. That’s constitutionally impossible. T____’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if T____ or his anointed successor loses again in the next quadrennial contest.

The last presidential election was a dry run for the next.

From long before Election Day 2020, T____ and Republicans planned to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment, if T____ lost the popular and Electoral College vote.

The cornerstone of the plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to T____.

The independent state legislature doctrine says that, under the Elections and the Electors Clauses of the Constitution, state legislatures possess plenary [i.e. absolute] and exclusive power over the conduct of federal presidential elections and the selection of state presidential electors. Not even a state supreme court, let alone other state elections officials, can alter the legislatively written election rules or interfere with the appointment of state electors by the legislatures, under this theory.

The Supreme Court has never decided whether to embrace the independent state legislature doctrine. But then-Chief Justice William Rehnquist, and Justices Antonin Scalia and Clarence Thomas in separate concurring opinions said they would embrace that doctrine in Bush v. Gore, 20 years earlier, and Republicans had every reason to believe there were at least five votes on the Supreme Court for the doctrine in November 2020, with Amy Coney Barrett having just been confirmed in the eleventh hour before the election.

T____ and the Republicans began executing this first stage of their plan months before November 3, by challenging as violative of the independent state legislature doctrine election rules relating to early- and late-voting, extensions of voting days and times, mail-in ballots, and other election law changes that Republicans contended had been unlawfully altered by state officials and state courts in swing states such as Pennsylvania, Wisconsin, North Carolina and Michigan.

These cases eventually wound their way to the Supreme Court in the fall of 2020, and by December, the Supreme Court had decided all of these cases, but only by orders, either disallowing federal court intervention to change an election rule that had been promulgated by a state legislature, allowing legislatively promulgated rules to be changed by state officials and state courts, or deadlocking 4-4, because Justice Barrett was not sworn in until after those cases were briefed and ready for decision by the Court. In none of these cases did the Supreme Court decide the all-important independent state legislature doctrine.

Thwarted by the Supreme Court’s indecision on that doctrine, T____ and the Republicans turned their efforts to the second stage of their plan, exploitation of the Electoral College and the Electoral Count Act.

The Electoral College is the process by which Americans choose their presidents, a process that can lead to the election as president of a candidate who does not receive a majority of votes cast by the American voters. Republicans have grown increasingly wary of the Electoral College with the new census and political demographics of the nation’s shifting population.

The Electoral Count Act empowers Congress to decide the presidency in a host of circumstances where Congress determines that state electoral votes were not “regularly given” by electors who were “lawfully certified,” terms that are undefined and ambiguous. In this second stage of the plan, the Republicans needed to generate state-certified alternative slates of electors from swing states where Biden won the popular vote who would cast their electoral votes for T____ instead. Congress would then count the votes of these alternative electoral slates on January 6, rather than the votes of the certified electoral slates for Biden, and T____ would be declared the reelected president.

The Republicans’ plan failed at this stage when they were unable to secure a single legitimate, alternative slate of electors from any state because the various state officials refused to officially certify the T____ slates.

Thwarted by the Supreme Court in the first stage, foiled by their inability to come up with alternative state electoral slates in the second stage, and with time running out, T____ and the Republicans began executing the final option in their plan, which was to scare up illegitimate alternative electoral slates in various swing states to be transmitted to Congress. Whereupon, on January 6, Vice President Pence would count only the votes of the illegitimate electors from the swing states, and not the votes of the legitimate, certified electors that were cast for Biden, and declare T____’s reelection as President of the United States.

The entire house of cards collapsed at noon on January 6, when Pence refused to go along with the ill-conceived plan, correctly concluding that under the 12th Amendment he had no power to reject the votes that had been cast by the duly certified electors or to delay the count to give Republicans even more time to whip up alternative electoral slates.

Pence declared Joe Biden the 46th President of the United States at 3:40 a.m. on Thursday, January 7, roughly 14 hours after rioters stormed the US Capitol, disrupting the Joint Session and preventing Congress from counting the Electoral College votes for president until late that night and into the following day, after the statutorily designated day for counting those votes.

T____ and his allies and supporters in Congress and the states began readying their failed 2020 plan to overturn the 2024 presidential election later that very same day and they have been unabashedly readying that plan ever since, in plain view to the American public. Today, they are already a long way toward recapturing the White House in 2024, whether T____ or another Republican candidate wins the election or not.

T____ and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote. Barrett has not addressed the issue, but this turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct.

Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.

The Republicans are also in the throes of electing T____-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be.

Finally, they are furiously politicking to elect T____ supporters to the Senate and House, so they can overturn the election in Congress, as a last resort.

Forewarned is to be forearmed.

T____ and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.

Although the Vice President will be a Democrat in 2024, both parties also need to enact federal legislation that expressly limits the vice president’s power to be coextensive with the power accorded the vice president in the 12th Amendment and confirm that it is largely ceremonial, as Pence construed it to be on January 6.

Vice President Kamala Harris would preside over the Joint Session in 2024. Neither Democrats nor Republicans have any idea who will be presiding after that, however. Thus, both parties have the incentive to clarify the vice president’s ceremonial role now.

As it stands today, T____, or his anointed successor, and the Republicans are poised, in their word, to “steal” from Democrats the presidential election in 2024 that they falsely claim the Democrats stole from them in 2020. But there is a difference between the falsely claimed “stolen” election of 2020 and what would be the stolen election of 2024. Unlike the Democrats’ theft claimed by Republicans, the Republicans’ theft would be in open defiance of the popular vote and thus the will of the American people . . .

Unquote.

Millions of Americans chose a monstrosity to lead us. Millions would have him lead us again. They must never be forgiven.

Some Conservatives Want to Avoid a Coup in 2024

One such conservative is J. Michael Luttig. You know he’s a conservative, because he clerked for Antonin Scalia, worked for Ronald Reagan and was made a federal judge by the first President Bush. After 15 years as a judge, he was Boeing’s general counsel for 13 years (2008 income = $2.8 million). He’s apparently consulting with “a number of senior Republican senators” regarding changes to the Electoral Count Act. He warned America in a piece for the NY Times today: 

The clear and present danger to our democracy now is that former President D____ T____ and his political allies appear prepared to exploit the Electoral Count Act of 1887, the law governing the counting of votes for president and vice president, to seize the presidency in 2024 if Mr. T____ or his anointed candidate is not elected by the American people.

The convoluted language in the law gives Congress the power to determine the presidency if it concludes that Electoral College slates representing the winning candidate were not “lawfully certified” or “regularly given” — vague and undefined terms — regardless of whether there is proof of illegal vote tampering. After the 2020 election, Republican senators like Ted Cruz of Texas and Josh Hawley of Missouri tried to capitalize on those ambiguities in the law to do Mr. T____’s bidding, mounting a case for overturning the results in some Biden-won states on little more than a wish. Looking ahead to the next presidential election, Mr. T____ is once again counting on a sympathetic and malleable Congress and willing states to use the Electoral Count Act to his advantage.

He confirmed as much in a twisted admission of both his past and future intent earlier this month, claiming that congressional efforts to reform the Electoral Count Act actually prove that Mike Pence had the power to overturn the 2020 presidential election because of the alleged “irregularities.” The former vice president pushed back forcefully . . . 

The back-and-forth repudiations by Mr. T____ and Mr. P____ lay bare two very different visions for the Republican Party. Mr. T____ and his allies insist that the 2020 election was “stolen,” a product of fraudulent voting and certifications of electors who were not properly selected. Over a year after the election, they continue to cling to these disproved allegations, claiming that these “irregularities” were all the evidence Mr. Pence needed to overturn the results, and demanding that the rest of the G.O.P. embrace their lies. The balance of the Republican Party, mystifyingly stymied by Mr. T____, rejects these lies, but, as if they have fallen through the rabbit hole into Alice’s Wonderland, they are confused as to exactly how to move on from the 2020 election when their putative leader remains bewilderingly intent on driving the wedge between the believers in his lies and the disbelievers.

This political fissure in the Republican Party was bound to intensify sooner or later, and now it has, presenting an existential threat to the party in 2024. If these festering divisions cost the Republicans in the midterm elections and jeopardize their chances of reclaiming the presidency in 2024, which they well could, the believers and disbelievers alike will suffer.

While the Republicans are transfixed by their own political predicaments, and the Democrats by theirs, the right course is for both parties to set aside their partisan interests and reform the Electoral Count Act, which ought not be a partisan undertaking.

Democrats, for their part, should regard reform of the Electoral Count Act as a victory — essential to shore up our faltering democracy and to prevent another attack like the one at the Capitol on Jan. 6, 2021. These are actually the worthiest of objectives.

Republicans should want to reform the law for these same reasons, and more. Of course, some may never support reform of the Electoral Count Act simply because the former president has voiced his opposition to the efforts to revise it. But there are consequential reasons of constitutional and political principle for the large remainder of Republicans to favor reform in spite of the former president’s opposition.

Republicans are proponents of limited federal government. They oppose aggregation of power in Washington and want it dispersed to the states. It should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington . . . [although he doesn’t mention that the Constitution (Article I, Section 4, Clause 1) gives Congress the authority to change the rules for elections].

Constitutional conservatives, especially, should want Electoral Count Act reform, because they should be the first to understand that the law is plainly unconstitutional. Nothing in the Constitution empowers Congress to decide the validity of the electoral slates submitted by the states. In fact, the Constitution gives Congress no role whatsoever in choosing the president, save in the circumstance where no presidential candidate receives a majority of the electoral votes cast.

T____ acolytes like Mr. Cruz and Mr. Hawley should appreciate the need to reform this unconstitutional law. . . . No Republican should want to be an accessory to any successful attempt to overturn the next election — including an effort by Democrats to exploit the law.

If the Republicans want to prevent the Electoral Count Act from being exploited in 2024, several fundamental reforms are needed. First, Congress should formally give the federal courts, up to and including the Supreme Court, the power to resolve disputes over state electors and to ensure compliance with the established procedures for selecting presidential electors — and require the judiciary’s expeditious resolution of these disputes. Congress should then require itself to count the votes of electors that the federal courts have determined to be properly certified under state law.

Congress should also increase the number of members required both to voice an objection and to sustain one to as high a number as politically palatable. At the moment, only one member of each chamber is necessary to send an objection to the Senate and House for debate and resolution — an exceedingly low threshold that proved a deadly disservice to the country and the American people during the last election.

Currently, Congress has the power under Article II and the Necessary and Proper Clause to prevent states from changing the manner by which their electors are appointed after the election, but it has not clearly exercised that authority to prevent such postelection changes. It should do so.

Finally, the vice president’s important, but largely ministerial, role in the joint session where the electoral votes are counted should once and for all be clarified.

It is hardly overstatement to say that the future of our democracy depends on reform of the Electoral Count Act. Republicans and Democrats need to . . . fix this law before it enables the political equivalent of a civil war three years hence. The law is offensive to Republicans in constitutional and political principle, officiously aggrandizing unto Congress the constitutional prerogatives of the states. It is offensive to Democrats because it legislatively epitomizes a profound threat in waiting to America’s democracy. The needed changes, which would meet the political objections of both parties, should command broad bipartisan support in any responsible Congress. . . . 

Come to think of it, the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.

Incendiary, Dangerous – Part 2

Quoting Paul Waldman of The Washington Post:

If and when D____ T____ runs for president in 2024, his will be a campaign devoted to revenge. Take all the ugliness, the anger, the race-baiting, the hate-mongering and the fetishization of violence that characterized his prior campaigns, and multiply them tenfold. That’s what’s in store for all of us.

T____’s revanchist [i.e. retaliatory] campaign will have many targets, but his greatest enemies are democracy and the rule of law itself. He made that clear this past weekend, when he took a new step in his long campaign to turn the horrific Jan. 6 insurrection into a story in which he and his supporters are the real victims.

T____ has been unwavering in justifying the insurrection and defending those who carried it out, beginning while the violence was still in progress. “We had an election that was stolen from us,” he said in a short video issued that day while the rioters were still rampaging, telling them, “We love you, you’re very special.”

But at a rally in Texas on Saturday, he went further than he has before.

“If I run and I win, we will treat those people from January 6 fairly,” he said. “And if it requires pardons, we will give them pardons because they are being treated so unfairly.”

The practical implications of this pledge for the insurrectionists themselves may be small; nearly all are likely to have completed their sentences by the time Trump would take office in 2025. But the symbolic importance is enormous.

No president in history used his pardon power in as corrupt a fashion as T____. Early on, he dangled the possibility of pardons as a message to those who helped him commit his misdeeds: Stay loyal to me, and I will make sure you are not punished for your crimes. And he followed through, pardoning a rogues’ gallery of former aides: Paul Manafort, Roger Stone, Stephen K. Bannon and Michael Flynn, among others.

But now, T____ is not just speaking to those who work for him; he’s talking to the whole population of his supporters, millions strong. If you commit crimes in my service, he says — even violent crimes, even insurrection against the government of the United States — I will protect you. Do your worst.

He also lashed out at prosecutors examining his financial shenanigans and his efforts to pressure officials into overturning the results of the 2020 election:

If these radical, vicious, racist [i.e. black] prosecutors do anything wrong or illegal, I hope we are going to have in this country the biggest protests we have ever had in Washington, D.C., in New York, in Atlanta and elsewhere, because our country and our elections are corrupt.

This isn’t an explicit call to mob violence, but combined with his celebration of the mob violence on Jan. 6, 2021, and his promise to pardon those who carried it out, the implication is clear: The appropriate response to the operation of the American legal system, if it doesn’t produce the outcomes you want, is to threaten it in the same way the electoral system was threatened a year ago.

Trump’s statements were so alarming that even some Republicans objected to them. Sen. Lindsey O. Graham (R-S.C.) said, “I think it is inappropriate. I don’t want to reinforce that defiling the Capitol was okay,” while New Hampshire Gov. Chris Sununu denounced the idea of pardons. And a handful of more reasonable Republican governors are willing to say that T____ shouldn’t be their party’s leader, because it will lead to more defeat.

But if there’s an internal conflict in the GOP over T____, he’s going to win it and his critics are going to lose.

You can point to some polls showing declines in T____’s popularity among the large universe of Republicans. But his GOP critics won’t coalesce into coherent resistance. Most Republican officeholders represent conservative states and districts where his supporters dominate, so they can’t be too critical of him. Those who are have no national constituency; there is no organized movement behind, say, Maryland Gov. Larry Hogan.

So no Republican would beat him in a presidential primary. And if he is their nominee, what will happen? Once again, nearly every Republican will say, “I don’t agree with everything he says, but since the alternative is Democrats being in power, I’m behind him.”

Which will mean indulging T____’s increasingly violent rhetoric and promises to abuse power and undermine the rule of law.

From now through 2024, T____ will steadily ratchet up his threats of lawlessness from both inside and outside the government he seeks to lead. And his fans will thrill to every moment of it. Just as in 2016 he told them to abandon civility and relish giving offense, in 2024 he will give them new permission to edge toward violence.

The difference between then and now is that the 2016 version of T____ felt that adherence to laws and norms — paying your taxes, obeying labor laws, telling the truth on loan applications — was for suckers, losers, people who didn’t have his ability to get what they want from the system.

But today, the system isn’t merely something he wants to circumvent and manipulate, it’s his enemy. It validates his election loss, it prosecutes him and his business, it resists him at every turn. And he wants revenge, both by winning in 2024 — with the help of a cadre of candidates who are all but promising to steal future elections on his behalf — and with a new presidential term that will make the previous one look upstanding and honorable.

T____’s malignant presidency ended with an attack on both the Capitol and the American system of government. If he gets another chance, do you doubt he’ll bring even worse?

His threats are not just talk. They’re a terrifying preview of what’s to come, and we’d better pay attention.

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