Election Day is soon upon us, and worries abound about the fairness of the voting now underway, and the counting to come. Reasonable people believe that Donald Trump will provoke a Constitutional crisis if he loses the vote, a fear he stokes at every turn. Meanwhile, the clock ticks. Professionals and local official running the election in the fifty states carry on, moving the process forward, doing the right thing as they’re trained. To borrow from Hemingway, we’re having an election that is happening gradually, and then will happen suddenly.
Results of the season’s legal battles over voting rules are now ready to tally up. It’s a mixed bag, with Republicans winning late decisions over the forms of mail-in ballots, state witness requirements and the always controversial naked ballot and double-envelope rules; Democrats have largely prevailed in winning longer mail-in counting periods. Contests over drop-in boxes for mail-in ballots turned ugly, with only one allotted for the whole of Harris County, Texas, which is as large as Rhode Island.
Perhaps the most consequential decision was the U.S. Supreme Court’s tie vote which for now lets stand a three-day extension for mail-in balloting in Pennsylvania. That could have a real impact on a swing-state’s result. In Supreme Court world, a four-four tie goes the runner, this time the Pennsylvania Supreme Court, dominated by Democrats.
There could be more late-breaking decisions, but every day we’re voting by the millions, using the rules we have. As voters mount a record turnout, many are left with a dire question posed by war-game strategists, Constitutional scholars, and front-line journalists: can Trump really steal the election if he loses?
He could, it’s possible, but it would be very hard.
The most direct attack for Trump, and one he loudly champions, would be to allege outright voter fraud. This season of litigation, however, has confirmed what many lawyers know from past experience: proving voter fraud is hard. Judges, whether liberal or conservative have to date refused to credit Republican claims presented without evidence. A frustrated Attorney General Barr even suggested that judges rely more on “common sense” rather than facts-in-hand to move voter fraud claims forward. One wonders whether the Attorney General was making a joke or surrendering the field.
Whatever Barr’s real meaning, his frustration admits voter fraud cases are very hard to win, most likely because large-scale voter fraud rarely happens. That fact seems to matter little to the President that Barr works for. I suspect this is because Trump, a frequent litigant before state and federal courts, does not care much about legal reasoning, but subscribes to a particular, market-based philosophy of legal warfare. His view is that lawyers working for him should find reasons to sue, with or without evidence, to cause his opponents, be they wronged business partners, or women charging rape, to stand down for fear of being ruined.
This strategy makes more sense with Roy Cohn calling the shots on blown casino deals than in litigation over fraud in a Presidential election. In the latter, evidence actually matters. It may matter especially to temperamentally conservative judges. One emphatic example is the recent Seventh Circuit decision that slapped away speculative Republican assertions of fraud in Wisconsin, permitting the extended count of mail-in ballots. The three-judge panel issuing the curt opinion were all Republican appointees.
Frustrated by rulings demanding facts that don’t exist, other Republican teams have reportedly pursued more fruitful election banditry: suborning the popular vote in states where Republicans hold a state legislative majority. The thinking is that Article II of the Constitution permits state legislatures to override popular vote totals by appointing electors to vote for the losing side. No facts required.
This avenue of attack is supported Article II language which reads that each state shall appoint electors “in such Manner as the Legislature may direct.” And there is historical precedent for thievery. In the election of 1876, four states put their electors in play to manuever the victory of Rutherford Hayes over the popular vote winner Samuel Tilden. Among the ignominious pay-offs for the Hayes presidency was an end to Reconstruction.
Now that’s the art of the deal.
Reforms in law and practice since 1876 make a re-play of bald election theft difficult to pull off, even for an unprincipled brawler like Trump. Still, it is possible that Republican-controlled legislatures in multiple swing states could seek to overthrow Biden victories by voting to substitute Trump electors. This gambit has been explored in detail by commentators such as Barton Gellman in his current Atlantic cover story, “The Election That Could Break America.” Gellman illustrates that In tightly contested swing states, Republicans could appoint Trump electors in defiance of a popular vote for Biden, and send competing groups of electors to Washington, playing havoc with the meeting of the Electoral College on December 14, which is the appointed day for votes to be cast and counted.
There are, however, large obstacles for this strategy to overcome that Gellman and like-minded like commentators leave unexplored: namely, that Article II powers, as other legislative powers, are exercised in a dense arena of process that legislatures have imposed upon themselves. The twists and turns of legislative process – dry stuff indeed — could up-end Trump’s strategy.
It is axiomatic that legislatures must follow their own rules, or their actions are without effect, ultra vires as the lawyers say. In the principal battleground states where Republican legislatures could act to override a Biden popular majority — Pennsylvania, North Carolina, Michigan, Wisconsin — voters have in each case elected a Democratic governor. In some, notably Pennsylvania and North Carolina, Democrats also enjoy a majority in the state supreme court. An electoral college scheme would require an act of the legislature, presenting the opportunity of a gubernatorial veto, and the necessity of a super-majority to override. If the Governor’s power to veto is challenged, the question could present to a Democratic-controlled state supreme court for resolution under state law. It’s quite possible that Democratic governors and state supreme courts can act effectively to checkmate actions of Republican legislatures asserting Article II powers.
Important to the difficulty Republicans would have to overcome is that the rogue legislatures would be seeking to head off and nullify something that has already happened. The popular vote in each case would be already certified by the Governor, and the Biden electors would have their plane tickets to Washington before the Trumpists could act.
Besides, even getting to the Electoral College vote requires that the legislature actually be in session to act. They can’t just do it by Zoom. If the legislature’s not in session, then a special session would be required, and the convening of it is generally subject to the Governor’s call, as in the case of a natural disaster. Whether the legislature can call itself back into session can vary from state to state, but the Governor could well veto that call for a special session as well. If a legislature purports to meet and takes action anyway, its actions face immediate injunction as ultra vires. Once again, the dispute could be decided under state law by state supreme courts.
So it’s not at all clear exactly how Republican controlled legislatures seeking to exercise Article II powers could actually get Trump electors from Harrisburg or Raleigh on planes to Washington. Confronting them would not only be the procedural challenges, but the momentum of the Democratic governors certifying the election results for Biden and dispatching the designated Democratic electors, all consistent with existing state law.
Judges are good with deadlines, and following the 1876 Hayes-Tilden debacle, Congress provided one important one. The Safe Harbor provision for seating electors provides that this year December 8 is the day for final lists to be presented, after which no others can be seated for the meeting to elect on December 14. If state supreme courts have ruled against the Republican manuevers, then, practically speaking, at that moment there is really only one group of electors, the Democratic slate following upon the Governor’s certification.
Presumably, part of the Republican strategy would be to appeal any adverse state supreme court ruling immediately to the U.S. Supreme Court in advance of the December 8 deadline. Traditionally, the U. S. Supreme Court gives great deference to rulings of state supreme courts interpreting state law, which should give comfort to Democrats. Then there’s the great exception, Bush v Gore, which didn’t defer to the Florida Supreme Court’s order to keep counting votes. The majority in 1980 acted unapologetically in a partisan fashion. “Just get over it,” Justice Scalia said to the Democrats, as the Republican-appointed justices handed the election to Bush. That decision, and Scalia’s remark, still shadow the reputation of the Court.
But I believe the legacy of that case, in this election, could help move the justices to rule for the other team. This time around, in a case appealed to the U.S. Supreme Court, I doubt whether the polished denizens of the Federalist Society, likely then including Justice Barratt, would bend over backwards to help Trump. The Federalist Society, a transactional bunch, has come a long way since the bare-knuckle days of the early Scalia. They have now gotten all they wanted from Trump, the most transactional of Presidents. Instead of a “just get over it” partisan reprise, one could see Chief Justice Roberts hitting the long-ball for the court’s legitimacy. Indeed, it could be a John Marshall-like moment: Roberts assembles a majority to rule against Trump, insuring a Biden presidency. With a thunderous opinion, the Chief ends the threat of a Constitutional crisis, ruling seemingly against interest. What Democrat is going to talk about court-packing after that?
Be assured the election’s march to resolution depends on deftly meeting timelines – notably certification of results by Governors, and the Safe Harbor deadline of December 8. Those and other actions can be challenged in multiple ways. But I don’t think that Trump can depend on judges of whatever stripe to be in his pocket. As Gellman and others have pointed out, enough delay and uncertainty could throw the deal into the House of Representatives, as in 1877, with harrowing consequences. But if Biden can win the election, and the Democrats win the Senate while holding the House, that result, too, can also be headed off. There just won’t be enough Republicans left in Congress to oppose the Democratic electors who show up to vote for Biden.
Finally, the nightmare scenario of Electoral College chaos first assumes that monolithic blocs of Republican state legislators are going to summon the will to overrule their voters. It hasn’t happened since 1876, and beyond the horse-trading stench of that long-ago deal, Hayes-Tilden happened at a time when state voters couldn’t even directly elect their own Senators. To put it mildly, attitudes about the popular vote are different now. I’m acquainted with some Republican state legislators, and they’re not given to political suicide. In purple swing states, to win state-wide office, you have to attract voters other than die-hard Trumpers. Charging the Electoral College hill for the likes of Trump could be a seriously career-limiting move for a Republican wanting to run for Governor or Attorney General in Pennsylvania or North Carolina. And if you answer Trump’s call to spit in the eye of your own electorate, you’re doing it after he’s already lost.
Results from month of skirmishing over election rules indicate that Trump’s claims of voter fraud draw skepticism from liberal and conservative judges alike and are not good avenues for him to overturn a lost election. Maybe he could still drum up enough die-hard loyalists in swing states where he’s lost the vote to make a run at the Electoral College. Still, there is a good chance that the rules state legislatures have voted for themselves to follow and the Democrats in key positions poised to enforce them could frustrate Electoral College mischief.
For Trump to steal the election may be possible, but it’s really hard for him to do.