2020 Presidential ElectionCourts and LawElections

Five Rudys From The Abyss

There are two reasonable ways to look at the 2020 presidential election.

The first is that despite a ferocious effort by Team Trump to steal a presidential election, the center held. Electoral votes were certified in accordance with the results of the popular vote in every state, the courts rejected a flood of bogus lawsuits seeking to overturn the election, and Joe Biden was inaugurated in a more or less peaceful transition. The “less” part of that equation—January 6—was appalling but in the end amounted to nothing more than a disorganized, failed attempt by a bunch of crazies to prevent Congress from certifying the election. The crazies are being held accountable by the boatload in criminal prosecutions, and a congressional investigation will get to the bottom of what happened and pass whatever laws may be necessary to prevent it from happening again. A bit chaotic, sure. But we’re going to be just fine.

The second way of looking at 2020 is that the attempted coup came much closer to succeeding than many would admit and was just a dress rehearsal for 2024. Every way in which the coup failed is correctable by Trump and red state legislatures, who are engaged in a relentless national campaign to put the machinery in place to accomplish what they could not the last time around. The danger to our democracy is real. We should be very worried.

Put me squarely in the worried camp.

Over two years ago, I wrote that Donald Trump’s failure to recognize, until it was too late, that he needed to corrupt the executive branch all the way down to the level of inspectors general had put him on a fast track to impeachment. Two federal inspectors general had exposed presidential misconduct in Trump’s dealings with Ukraine and, sure enough, Trump was subsequently impeached (although not removed). More likely than not, when Trump took office he had no idea what inspectors general did, so the idea that he’d better replace some of them with “his people” probably never occurred to him. Be assured, it’s occurred to him now.

A similar dynamic frustrated Trump’s attempts to overturn the 2020 election. His corruption of the federal government was negligent, only half done. While he had loyalists like Vice President Mike Pence and Attorney General William Barr in key offices, their loyalty only went so far. They retained sufficient independence—or shame or residual political ambition or concern over their legacies—to be unwilling to go along with Trump’s attempt to overturn the election.

While Trump’s failure to corrupt the federal government was half-baked, at least he tried. Not so when it came to state governments, which he largely ignored. As a result, even states with Republican-dominated legislatures and party officials, such as Arizona, Georgia, Michigan, and Wisconsin, weren’t wholly owned Trump subsidiaries. They were Trumpy, but not Trumpy enough—they whined and fussed, but at the end of the day they allowed the election results in their states to be certified.

And yet, despite Trump’s failure to thoroughly corrupt the federal and state governments, he came frighteningly close to overturning the election or, at the least, throwing the nation into the mother of all constitutional crises.

How close?

Trump fell five Rudys short.

Substitute Rudy Giuliani—or Sidney Powell or Jim Jordan or any other Trump cultist—for just five people who held state or federal office at the time of the 2020 election and think about what might have happened.

Put a Rudy in the place of Brad Raffensperger, the Republican secretary of state in Georgia who stood his ground in the face of hellish pressure from the president of the United States and certified Joe Biden’s win in the state.

Replace Michigan Board of State Canvassers member Aaron Van Langevelde, who bucked GOP pressure to provide the swing vote to certify Biden’s win in Michigan, with a Rudy.

Make a Rudy the secretary of state of Pennsylvania instead of Kathy Boockvar, who certified Biden’s win in that state.

That puts 42 electoral votes in play in Georgia, Michigan, and Pennsylvania alone. Forget about Arizona and Wisconsin—Trump wouldn’t need them. He only lost by 38.

Or take a different route. Replace Attorney General Bill Barr with a Rudy and have him declare that the Justice Department had determined that massive fraud tainted the results in all of the swing states that went for Biden. Team Trump had an actual plan to do just that, replacing Barr with a brainwashed nobody named Jeffrey Clark, but Trump never pulled the trigger.

Or blow the whole thing out of the water in one shot. What if, rather than Mike Pence, a Rudy had been vice president—someone who would refuse to even open the certified electoral ballots, much less count them.

There is, of course, no way of knowing exactly how things would have played out if those five Rudys had been in place. The counterfactual is always ridden with uncertainty. What if Nazi Germany had won World War II? What if the Supreme Court had handed the 2000 presidential election to Al Gore instead of George W. Bush? What if James Comey hadn’t sabotaged Hillary Clinton in the final moments of the 2016 presidential election?

We can’t know exactly how history would have played out.

But we can know that it would have played out differently. If the five Rudys had been in place in 2020, at a minimum, three states with more than enough electoral votes to overturn the vote of the people would have been in play, quite possibly with their final vote certifications being decided by highly partisan Republican legislatures. And we know that if Trump had had Rudys in the offices of the attorney general and vice president, they might have created enough chaos to throw the election into the hands of the U.S. House of Representatives where, because the vote would be state-by-state rather than by individual representatives, a strict party-line vote would have installed Trump, not Biden, as president.

In other words, Trump didn’t fail to overturn the 2020 election because our brilliantly engineered system of constitutional government held fast. It’s much more prosaic than that: He simply didn’t have the right people in the right positions to pull it off. He was five Rudys short, perhaps fewer under some entirely conceivable scenarios.

Now, he’s learned his lesson. If he’s re-elected in 2024, he won’t make the same mistakes. He will appoint a Rudy to every federal position that can impact a presidential election, starting with his selection of a vice president and his appointment of an attorney general. Don’t take my word for it. Listen to Trump confidant and fanboy Dan Bongino, as reported last week by Evan Osnos in the New Yorker:

On a show this fall, [Bongino] read a listener’s question: “In the event that Trump does get reëlected in 2024, what has he learned from his first go-round of draining the swamp?” Bongino had a ready answer. “They tried to take kind of a ‘Team of Rivals’ Lincoln approach,” by appointing Republicans who had not been among Trump’s original supporters, he said. “That was clearly a mistake. They backstabbed him. The John Boltons and others.” That wouldn’t happen again, he vowed.

The hole in Bongino’s argument, of course, is that Trump can only complete his job of corrupting the federal government if he’s re-elected. That won’t help him win in 2024. He’s out of office, so he no longer controls the levers of the federal government. If he’s going to pull off a coup in 2024 from outside the federal government, he’ll need a new bag of tricks.

He’ll need to corrupt the states, where the real power lies when it comes to overturning presidential elections.

As of this writing, Trump’s ongoing efforts to corrupt the states, like his previous efforts to corrupt the federal government, are incomplete. But they are very much a work in progress. Here’s Barton Gellman, writing last month in the Atlantic:

For more than a year now, with tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft. Elected officials in Arizona, Texas, Georgia, Pennsylvania, Wisconsin, Michigan, and other states have studied Donald Trump’s crusade to overturn the 2020 election. They have noted the points of failure and have taken concrete steps to avoid failure next time. Some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie. They are fine-tuning a legal argument that purports to allow state legislators to override the choice of the voters.

The horrifying truth about Trump’s ongoing efforts to take the next presidential election out of the hands of voters and place it into the hands of GOP-led state legislatures is that he may be able to get away with it legally.

The U.S. Constitution does not require that presidents be elected by popular vote. Rather, presidential elections are decided by the votes of “electors” appointed by each state’s legislature. While all fifty states and the District of Columbia have opted to use a popular vote to select their electors, they don’t have toArticle II of the Constitution leaves that decision to the state legislatures: “Each State shall appoint, in such Manner as the Legislature thereof may direct” the number of electors from that state.

As Laurence Tribe, the Harvard constitutional law professor, noted in an email to me:

There’s nothing in the Constitution’s text, in the framing history of Article II or the Twelfth Amendment, or in the way the relevant provisions were applied in the first century or century and a half after adoption of the Twelfth Amendment in 1804, to support the thesis that a State must opt to use a popular vote as the “Manner . . . the Legislature thereof . . . direct[s]” for “appoint[ing] . . . [the requisite] Number of Electors.”

The timing of Trump’s efforts to get state legislatures to overturn election results is more favorable for him now than it was in 2020. His most desperate attempts in 2020 mostly came after all fifty states had certified their elections. That made his task virtually impossible and forced him to rely in the end on the January 6 failed insurrection and an incomplete hail Mary pass to Vice President Pence. This time, however, Trump’s ongoing efforts are geared toward having the right people and the right laws in place at the state level before any elections are certified.

Right now you may be thinking, “boy, we really need to pass federal voting rights legislation.” You’re right. But get this: Absolutely nothing in either of the two voting rights bills that Democrats are trying desperately to get through Congress—the John Lewis Voting Rights Advancement Act and the For the People Act of 2021—would change anything about how the states go about selecting electors or certifying presidential elections. The two bills would bring much-needed reform in crucial areas such as voter access, election security, and campaign finance. But they wouldn’t inhibit state legislatures from hatching schemes to effectively nullify the popular vote.

The good news, such as it is, is that Trump’s campaign to use endorsements and bullying to bend the states toward voter nullification is far from a done deal. No state has yet amended its constitution or passed legislation to do away with the popular vote in presidential elections. Nor have any states passed new laws that explicitly authorize state officials to nullify elections.

But it’s not for lack of trying. As Professor Tribe points out, many states “already include provisions giving state officials authority to require a recount or otherwise to reject the results” of presidential elections. Barton Gellman similarly warns in his Atlantic article that GOP-controlled state legislatures have tinkered with the post-election certification process in ways that seem to open the door for election nullification. They have, in Gellman’s words, “rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie.”

Between now and the 2024 election, the battle for democracy will be won or lost in the states. Short of a constitutional amendment requiring that electors be selected by popular elections and prohibiting states from nullifying the results of those elections, no action at the federal level is likely to prevent the states from finding ways to bypass or invalidate the peoples’ vote and hand the certification process over to partisan state legislatures. Lawsuits targeting the most egregious state efforts to substitute the will of legislators for the will of the voters might have some limited chance of success, but as discussed above, the Constitution gives state legislatures pretty much carte blanche when it comes to the method of appointing electors. No court is going to mess with that.

Running out the clock before GOP state legislatures get around to doing whatever they need to do to take decisions away from the voters might work in 2024.

But we need to think bigger. And longer term. We should start laying the political groundwork for a constitutional amendment that, some 250 years into our nation’s history, at long last writes democracy into our Constitution.

We need to make overturning a presidential election unquestionably illegal.

It’s not going to happen overnight. Constitutional amendments often take years, even decades, to go from an idea to a fully ratified fait accompli. But it’s never going to happen at all if we don’t start sometime.

Now would be good.

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