The Plan to Steal the 2020 Election

The House of Representatives has a committee that’s begun investigating the January 6th attack on the Capitol. So far they haven’t begun sharing the results of their investigation. I hope they focus just as much on what didn’t involve any violence at all. The president and his co-conspirators had a step-by-step plan to steal the election. That’s deserving of much more attention than it’s received so far.

From Jamelle Bouie of The New York Times:

. . . As the full picture of Jan. 6 begins to come into view, I think we should consider it a kind of revolution or, at least, the very beginning of one. Joe Biden ultimately became president, but D____ T____’s fight to keep himself in office against the will of the voters has upturned the political order. The plot itself shows us how.

T____, we know, urged Mike Pence to reject the votes of the Electoral College, with the mob outside as the stick that would compel his obedience. “You can either go down in history as a patriot,” T____ told Pence, as recounted in this newspaper, “or you can go down in history as a pussy.”

When this was first revealed, I assumed that T____ simply wanted Pence to do whatever it would take to keep himself in power. But this week we learned that he had an actual plan in mind, devised by John Eastman, a prominent conservative lawyer who worked with the former president to challenge the election results, a job that included a speaking slot at the rally on the National Mall that preceded the attack on the Capitol.

“We know there was fraud,” Eastman said to the crowd that would become a mob. “We know that dead people voted.”

“All we are demanding of Vice President Pence,” he continued, “is this afternoon at 1 o’clock, to let the legislatures of the states look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not!”

These weren’t just the ravings of a partisan. Eastman was essentially summarizing the contents of a memo he had written on T____’s behalf, describing the steps Pence would take to overturn the election in T____’s favor.

First, as presiding officer of the joint session in which Congress certifies the election, Pence would open and count the ballots. When he reached Arizona, Pence would then announce that he had “multiple slates of electors” and would defer his decision on those votes until he finished counting the other states. He would make this announcement for six other swing states — including Georgia, Michigan, Pennsylvania and Wisconsin — before announcing that “there are no electors that can be deemed validly appointed in those States” on account of election disputes and accusations of fraud.

At this point, Eastman explained, Pence could declare T____ re-elected, because — with seven states removed from the count — the president would have a majority of whatever electors were left, and the 12th Amendment states that the “person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”

If, for some reason, this didn’t fly, Eastman went on, Pence could then say that no candidate had won a majority and thus the election must go to the House of Representatives, where each state has a single vote and Republicans controlled a slim majority of state delegations, 26 to 24. If Democratic objections led both houses of Congress to split into their separate chambers to resolve the dispute, then Republicans could obstruct the process in the Senate and create a stalemate that would allow Republican-controlled state legislatures “to formally support the alternate slate of electors.”

As for the courts? Eastman argued that they don’t matter. “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter.” If Pence has the power, then Pence should act and “let the other side challenge his actions in court.”

Eastman’s confidence throughout this memo (he dismisses potential Democratic objections as “howls”) belies his shoddy legal, political and constitutional thinking. For one, his argument rests on an expansive reading of the Twelfth Amendment for which there is no precedent or justification. The vice president has never directly counted electoral votes. “Beginning in 1793, and in every presidential election since,” the legal scholar Derek Muller notes in a piece debunking key claims in the memo for the website Election Law Blog, “the Senate and the House have appointed ‘tellers’ to count the electoral votes. These tellers actually tally the votes and deliver the totals to the President of the Senate, who reads the totals aloud before the two houses after the tellers, acting on behalf of Congress, have ‘ascertained’ the vote totals.”

The 12th Amendment, ratified in 1804, codified that practice into the Constitution. Congress would do the counting, and the vice president would simply preside over the process.

Eastman also asserted that the vice president could disregard the procedure specified under the Electoral Count Act because the law itself is unconstitutional. That, Muller notes, is controversial (and something Eastman himself rejected in 2000, in testimony before the Florida Legislature during the dispute between George W. Bush and Al Gore). And even if it were true, the 117th Congress, on its first day in operation, Jan. 3, adopted the provisions of the law as its rule for counting electoral votes, which is to say Pence had no choice but to follow them. His hands were tied.

Which gets to the politics of this scheme. If Pence were to disregard the rules and the history and seize control of the counting process, House Speaker Nancy Pelosi would presumably have suspended the joint session, which relies on the consent of both chambers of Congress. “With a stalled and incomplete count because of a standoff between Pence and Pelosi,” the legal scholar Ned Foley writes in a separate Election Law Blog post, “the Twentieth Amendment becomes the relevant constitutional provision.” Meaning, in short, that at noon on Jan. 20, Pelosi would become acting president of the United States. Pence would lose authority as vice president (and president of the Senate) and the joint session would resume, with Congress putting its stamp of approval on Biden’s victory. . . . 

None of this should make you feel good or cause you to breathe a sigh of relief. Consider what we know. A prominent, respected member in good standing of the conservative legal establishment — Eastman is enrolled in the Federalist Society and clerked for Supreme Court Justice Clarence Thomas — schemed with the president and his allies in the Republican Party to overturn the election and overthrow American democracy under the Constitution. Yes, they failed to keep T____ in office, but they successfully turned the pro forma electoral counting process into an occasion for real political struggle.

It was always possible, theoretically, to manipulate the rules to seize power from the voters. Now, it’s a live option. And with the right pieces in place, T____ could succeed. All he needs is a rival slate of electoral votes from contested states, state officials and state legislatures willing to intervene on his behalf, a supportive Republican majority in either house of Congress, and a sufficiently pliant Supreme Court majority.

As it happens, T____ may well run for president in 2024 (he is already amassing a sizable war chest) with exactly that board in play. Republican state legislatures in states like Georgia and Arizona have, for example, used claims of fraud to seize control of key areas of election administration. Likewise, according to Reuters, 10 of the 15 declared Republican candidates for secretary of state in five swing states — Arizona, Georgia, Wisconsin, Michigan and Nevada — have either declared the 2020 election stolen or demanded that authorities invalidate the results in their states. It is also not unlikely that a Republican Party with pro-T____ zealots at its helm wins Congress in November of next year and holds it through the presidential election and into 2025.

If T____ is, once again, on the ballot, then the election might turn on the manipulation of a ceremony that was, until now, a mere formality.

. . .  If this happens, it would be a revolutionary change. In this world, the voters, as filtered through the Electoral College, no longer choose the president. It becomes less a question of the rule of law and more one of power, of who holds the right positions at the right time, and especially, of who can bring the military to their side.

On Jan. 20, Joe Biden became president and D____ T____ slunk off to Mar-a-Lago to lick his wounds. But the country did not actually return to normalcy. Jan. 6 closed the door on one era of American politics and opened the door to another, where constitutional democracy itself is at stake.

There are things we can do to protect ourselves — legal experts have urged Congress to revise the Electoral Count Act to close off any Eastman-esque shenanigans — but it is clear, for now at least, that the main threat to the security and stability of the United States is coming from inside the house.

Unquote.

Yet, almost ten months later, there is no indication that the Department of Justice is interested in January’s attempt to steal the election non-violently. Nor have congressional Democrats all agreed on a plan to stop Republican politicians from using their official positions to steal future elections.

I Wish Everyone Realized How Serious This Is

Dan Rather, the former face of CBS News, is mad as hell (the page has an audio link if you’d rather listen to him read this):

. . . Where I find myself today: Usher out the children. Cover sensitive ears. Because this old reporter is full of a little fire. 

The topic at hand is the truth, and not some esoteric notion to be debated in a college philosophy seminar. This is a truth so urgent, so important, so obvious, that attempts to undermine it would be laughable if they weren’t so dangerous. So here it is. 

Joe Biden won the 2020 presidential election. It wasn’t particularly close. He won the total national vote overwhelmingly and won decisively in the Electoral College. There is no credible suggestion to the contrary. Election officials confirmed it. The courts confirmed it. It is apparent to everyone who doesn’t live in an alternate reality, who doesn’t harbor seditionist impulses, who isn’t a craven opportunist, or who doesn’t marinate in the cesspool of these forces, otherwise known as Fox News. For those who suggest otherwise (who say that Biden is not the legitimately elected President of the United States), many have been deceived and others are willfully deceiving them for their own cynical, and dangerous, ends. 

And yet that’s where a majority of Republicans find themselves today, if you believe the polls. And it is certainly where a majority of elected officials are if you just listen to what they say, or more importantly don’t say. The origin of this lie-laden authoritarianism is the former president, who couldn’t fall back on his usual playbook of suing, sulking, and skedaddling to get himself out of the loser spotlight. So he decided to do what he does best, the tool he used to propel himself to the presidency. He lied. Not a small half-truth. Not a wee fib. Not even a bald-faced lie. A lie so big it deserves to be written as a proper noun — the Big Lie. 

This Big Lie led to violent insurrectionists storming the United States Capitol, attempting to stop final certification of election results. It has led to Republican state representatives falling over themselves to try to cut back on voting rights. And how do they try to justify it? They say their supporters have lost faith in the voting system. But that is because their supporters have been lied to by the same politicians who are now using that as an excuse to stifle democracy. Propaganda and authoritarianism play on in a destructive feedback loop. . . . 

Now to be fair, not EVERY Republican has fallen in line. Take the high-profile case of Liz Cheney, the daughter of former vice president, Dick Cheney. She’s certainly no liberal . . . but she has had the temerity to say what her colleagues won’t, that the would-be emperor has no clothes . . . [So] her fellow House Republicans are coming for her like a political version of Murder on the Orient Express . . . 

Who thrives in such an environment? Craven opportunists like Elise Stefanik. You would think this Harvard-educated congresswoman from upstate New York would know better about the Constitution and the ridiculousness of the Big Lie, but she long ago pegged her future to prostrating at the altar of [the former president]. And now she is poised to replace Cheney in Republican leadership. Some conservative groups are grumbling that Stefanik’s voting record is far more “liberal” than they would like, but . . . whatever tenuous links the Republican Party had to a consistent ideology [are now broken]. It’s now a cult of personality, not a political party. And fealty is prized over all else. . . .

It brings me no joy in saying that one of the factors that is exacerbating this dangerous era in our national history is a Washington press corps that is struggling to make sense of a disorienting landscape. The bedrock of American democracy, for better and worse, has been a stable two party system — with some notable moments of exception. The press is used to two opposing forces waging battle over policy. At least nominally. Now the no man’s land between Republicans and Democrats is over a belief in democracy itself and not things like taxes or foreign policy.

Once again, this is not a theoretical musing. Is it too much to say that giving oxygen to the Big Lie, let alone actively espousing it, is a form of sedition? Full stop. Think about it. Is lying about the truth of last November making a mockery of any pledge of patriotism? No matter how many flag lapel pins you wear or how often you quote the “Founding Fathers,” to deny a fair and honest election and the orderly transfer of power risks placing you squarely in the camp of dictators and autocrats, and helping with the demise of democracy.

The press needs to start taking this even more seriously than it does now. Every elected Republican who has played footsie with the Big Lie should have to defend that record before they can speak on any other topic. They can’t be allowed to dodge. The questions aren’t difficult. Did Joe Biden win the election? Where is your evidence to the contrary? And because there is no such evidence, if they try to quote something, they should be pressed on the truth. Live interviews are particularly problematic because politicians can stretch out a string of lies so long that they can spin their way to a commercial break. Those with a history of such actions should not be given prominent platforms for their performance art. 

The Big Lie must be the context for everything that is taking place in Washington, and political stories across the country. It is not old news. January 6 is not old news. This denial of reality is the animating principle driving the Republican Party. We can’t talk about legislation in Washington, immigration, climate change, fiscal policy, foreign policy, civil rights, education, or any other issue politicians are “debating” without talking about the Big Lie. . . . 

Republicans desperately want the mainstream press to cover the daily news cycle through the lens of traditional party politics. At the same time, they go on their propaganda channels and stir up their base against the mechanics of fair and open elections. They spread the poison of illegitimacy to attack the Biden Administration. On Fox News you get a concerted and coordinated attack. Outside of that echo chamber you get what was once the normal news diet of a spectrum of different stories. But this is not a normal news environment. This is an attack on American values, and our ability to continue to function as a government that represents the will of the majority of Americans. The Big Lie is everything right now and the press and the American people must not provide safe harbor for it to continue to metastasize. 

I want to end with a note of some optimism. I believe the Big Lie is so ludicrous and outrageous that it can be made to collapse under the weight of its own perfidy. If it is put into the proper spotlight, if it becomes so radioactive that big business, the press, and the public at large refuse to bestow any legitimacy to those who traffic in it, then it can and will be defeated. . . .

Unquote.

Some in the press are finally referring to a Republican lie as a lie, which is progress. But it’s hard to believe anything but the passage of time (a lot of time) will weaken the Big Lie’s hold on what is now a reactionary cult.

Paul Waldman of The Washington Post, who is much less optimistic than Dan Rather, explains why:

Let’s not beat around the bush: The Republican Party has pretty much lost its mind. In the time since the 2020 election, rather than trying to make a new start after the disaster of the [previous four] years, it has become more radical and more extreme. Most important of all, it has emphatically and comprehensively rejected democracy itself.

Now here’s the scariest part: There’s almost no reason to believe that this will hurt the ability of Republicans to win elections and take back the power they’ve lost. . . . 

Outside of a few truly deranged members, almost all elected Republicans in Congress know that [their candidate] lost. But they’re making a calculation that because of polarization, it doesn’t matter how extreme they get, what kind of lies they encourage people to believe, or what kind of damage they do to our system. If they can keep their base angry, it will give them the path back to power . . . despite the fact that the Republican Party is still in thrall to the most disastrous president of any of our lifetimes, one whose incompetence helped result in hundreds of thousands of American deaths and the implosion of our economy.

Yes, [he] lost. But not by the 23-point margins of the 1964 and 1972 elections. By just 4½ percentage points.

In today’s Republican Party, polarization doesn’t just mean there’s almost nothing the party could do that would cause its support to collapse. It means there is literally nothing it could do.

. . . [The Republican] base remains sizable enough that they’re always in a position to win, even with those defections. And at the state level, they not only hold the bulk of the power, they’ve gerrymandered state legislative seats so ruthlessly that in some places it’s essentially impossible for Democrats to take control no matter how resoundingly they win the support of the electorate.

So show me the Republicans in Washington who will lose their seats for being too supportive of [their leader] and the “big lie” of the stolen election. . . . The combination of gerrymandering, geographical sorting and polarization means there are almost none. The party can get steadily more unhinged and more implacably opposed to democracy, with consequences for its electoral fortunes that are temporary at most.

All it would take to return them to complete power in Washington is an ordinary midterm election [when the president’s party usually loses seats] followed by an economic downturn in 2024, whereupon whichever cynical extremist they nominate for president could sneak into the White House.

We keep waiting for the moment when the country says, “Now you’ve gone too far, Republicans,” and sends them into oblivion. But the truth is, they see no reason to change the path they’re on. . . .