Everything old is new again. Drive down Sunset Boulevard toward the city, and where Silver Lake turns into Echo Park, the streets off to the side will begin to look oddly familiar. Mack Sennett’s 1912 studio is still down there, the home of the Keystone Cops. All those slapstick shorts were shot in the neighborhood. That’s why things look familiar. Those cops were hopeless. They couldn’t do anything right. America loved it. Mack Sennett got rich.
But then there’s Richard Hasen, the expert in legislation, election law and campaign finance, and the Chancellor’s Professor of Law and Political Science at the University of California, Irvine School of Law, which is much further down the road. But he still appreciates the Keystone Cops. He knows these people:
In recent weeks, we’ve gotten an even greater glimpse into Donald Trump’s efforts to discredit and overturn the results of the 2020 election. From the clownish ongoing audit in Arizona to the revelation of Jeffrey Clark’s insane and rejected December plan for the Department of Justice to cajole legislatures in states Biden won into overturning those results to the attorneys being sanctioned for their frivolous Trump election lawsuits, the 2020 election subversion attempt is being shown every day to have been a Keystone Cops Coup.
Follow the links. This was absurd. It was almost comic, but it couldn’t be comic. No one should make that mistake:
The crude and failed nature of Donald Trump’s attempt to destroy the 2020 election has made it easy to dismiss as overblown concerns about the integrity of the 2024 election too. After all, court after court rejected attempts by Trump and his allies in the aftermath of the November 2020 count to prove that fraud affected the election results. Despite Trump’s attempts to pressure state election officials, governors, state legislators, and officials at the U.S. Department of Justice like Clark to get state legislatures to meet and declare new electoral college votes for him after the presidential vote was certified for Biden in each challenged state, the system (barely) held, and Trump was removed from office on January 20, 2021.
But there has been a subtle shift in how Trump and his allies have talked about the supposed “rigging” of the 2020 election in a way that will make such claims more appealing to the conservative judges and politicians that held the line last time around.
Come 2024, crass and boorish unsubstantiated claims of stealing are likely to give way to arcane legal arguments about the awesome power of state legislatures to run elections as they see fit.
Okay, no more Keystone Cops crap:
Forget bonkers accusations about Italy using lasers to manipulate American vote totals and expect white-shoe lawyers with Federalist Society bona fides to argue next time about application of the “independent state legislature” doctrine in an attempt to turn any Republican presidential defeat into victory.
Yep, Trump is down with that:
Trump signaled as much in his March 2021 interview with the Washington Post’s Carol Leonnig and Phil Rucker for their book, I Alone Can Fix It, and key conservative operatives have sent the same signals according to Jane Mayer’s recent blockbuster reporting in the New Yorker about the big money behind the Big Lie.
Trump’s interview with Leonnig and Rucker got attention for Trump saying that he spoke to a “loving crowd” on Jan. 6 before some of them violently stormed the Capitol to try to stop Congress’s electoral college vote count.
But what caught my ear was Trump’s explanation of why he said the election was “rigged.” Even putting supposed “massive” fraud aside, he said in posted audio of the interview, “the legislatures of the states did not approve all of the things that were done for those elections. And under the Constitution of the United States, they have to do that. And the Supreme Court, they didn’t find fact – don’t forget, they didn’t say they disagreed – they said we are not going to hear the case. I’m very disappointed in the Supreme Court. Had Mike Pence had the courage to send it back to the legislatures, you would have had a different outcome, in my opinion.”
So, now, this is new legal theory that wins Trump the White House again, and wins Republicans the White House forever:
It wasn’t just Trump advancing this argument to try to overturn the election. It also was a cadre of conservative activists like Leonard Leo, co-Chairman of the Federalist Society, whose Orwellian-named “Honest Elections Project” pushed the same argument before the Supreme Court.
As leading election law scholar Nate Persily told Jane Mayer for the New Yorker, the Independent State Legislature doctrine is “giving intellectual respectability to an otherwise insane, anti-democratic argument.”
It may be insane and serenely anti-democratic, but it is an argument:
Article II of the Constitution of the United States provides that state legislatures get to set the “manner” for choosing presidential elections. Similarly, Article I, section 4 gives the state “legislature” the power to set the time, place, and manner for conducting congressional elections, subject to congressional override. In practice, these clauses have been understood as allowing the legislature to set the ground rules for conducting the election, which are then subject to normal state processes: election administrators fix the details for administering the vote, state courts interpret the meaning of state election rules, and sometimes judges and officials decide when state rules violate state constitutional rights to vote.
For example, in the run-up to the 2020 election, the Pennsylvania Supreme Court decided that a state law requiring that mail-in ballots must arrive by Election Day to count violated the state constitution’s provisions protecting voting rights in light of the election being conducted during the pandemic. It extended the receipt of ballots by three days.
And that was the opening the Trump folks needed. The courts don’t matter. They have no right say anything about any of this. The state legislate alone has all rights in these matters:
Republicans challenged that extension, arguing that the U.S. Constitution makes the legislature supreme, even if the state legislature would otherwise be violating the state constitution as determined by the state supreme court. This is the “independent state legislature” doctrine because it proposes that the legislature is supreme against all other actors that might run elections.
And that’s what worries Hasen:
This is a wacky theory of legislative power, but it is one that four Supreme Court justices (Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas) expressed support for in various opinions during the 2020 elections, and it echoes an alternative argument that former Chief Justice William Rehnquist, joined by Justice Thomas and former Justice Antonin Scalia, made in the Bush v. Gore case ending the 2000 election and handing victory to Republican George W. Bush.
That alternative argument was that even the Supreme Court was irrelevant in any ruling on Bush or Gore winning. Florida’s state legislature had the say in that matter. Forget the actual vote:
Justice Alito thought enough of the argument in the 2020 Pennsylvania case to order ballots arriving in Pennsylvania in the three days after Election Day to be set aside for possible exclusion from the count. Fortunately, there were only about 10,000 such ballots, and they did not determine the outcome of the presidential race (Biden won there by about 80,000 votes.)
The 2020 fight over the independent state legislature doctrine was a close call. It would not be at all surprising to see at least five or perhaps all six conservative justices embrace the argument next time it comes before the court in a timely way.
So expect this:
It’s easy to picture how this might play out in the next presidential election. Imagine that a state legislature sets forth general rules for conducting the 2024 election, but it does not provide every detail about how the election is run. Republican legislatures in states won by the Democratic candidate could seize on some normal election administration rule created by a state or local election administrator or some ruling from a state court, and argue that implementation of the rule renders the presidential election unconstitutional, leaving it to the state legislature to pick a different slate of electors.
A state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.
And then this happens:
Should Republicans control Congress in early 2024, they could well accept these arguments as they count Electoral College votes, even as such arguments were rejected by a Democratic-led Congress (over the objections of well over 100 Republican members of Congress) in 2020. They might try to count the votes from the state legislature rather than votes reflecting the people’s will.
The independent state legislature argument – which would essentially overturn U.S. elections to make the loser the winner – would have an air of respectability that would not depend upon a claim that the election was rife with fraud or stolen, but that the actions of the state’s governor, or courts, or election administrators violated the Constitution by usurping the legislature’s rights.
If so, then why should any citizen bother to vote at all? That’s the ideal end game here. Popular elections become pointless. They end, Republicans run everything forever, and Hasen adds this:
The January 6 insurrection, and Trump’s actions trying to change the electoral college votes in five states, was an attempted coup built on the Big Lie of voter fraud. But the potential coup next time will come in neatly filed legal briefs and arguments quoting Thomas Jefferson and wrapped in ancient precedents and purported constitutional textualism. It will be no less pernicious.
And that will end things, although Steve M at No More Mister Nice Blog sees this:
There are two kinds of Republicans. Trumpist Republicans want to steal elections by any means necessary, however brazen or transparently anti-democratic. They’re comfortable with the notion that if the votes are tallied and a Democrat is declared the winner, they can get that result upended without any blowback, without millions of Democratic voters taking to the streets while the party sues to prevent the steal.
Other Republicans are subtler. They want to steal elections the old-fashioned way: by making sure that many Democrats can’t vote. That way the results never show a Democrat winning, and the election looks fair.
And they would never need arcane legal theory to pull that off. Steve M cites Vox’s Ian Millhiser on that:
In March, Georgia Republicans passed SB 202, a sweeping new election law that erects obstacles between Georgia voters and their right to cast a ballot…. the most ominous provisions of this new law allow the state election board, which is dominated by Republicans, to seize control of county election boards. Those boards can disqualify voters, move polling precincts, and potentially even refuse to certify an election count.
Steve M notes that Republican members of the Georgia state legislature have requested a “performance review” of the election board in Fulton County, which includes Atlanta. Fulton County is the most populous county in Georgia and is heavily Democratic. The request for a performance review sets a process in motion that could lead to a state takeover of the county election board – temporarily, but almost certainly in time for the 2022 midterms.
Millhiser explains the mess that causes:
First, county election boards normally have the power to adjudicate claims that a particular voter is not lawfully allowed to vote, so this power would be transferred to a GOP-appointed superintendent. If a county board (or a temporary superintendent) determines that a particular voter is “not qualified to remain on the list of electors,” the voter will be disenfranchised and removed from the list of registered voters.
Moreover, because state law permits any Fulton County voter to challenge the right of any other Fulton County voter to cast a ballot, the temporary superintendent could potentially be inundated with requests to disenfranchise individual voters….
A temporary superintendent also has the power to relocate polling sites, and they have some authority to divide, reshape, or combine existing polling precincts. In the worst-case scenario, a Republican superintendent might attempt to shut down most of the polling places in Atlanta, forcing voters to wait in long lines to cast a ballot. At the very least, such a superintendent might move around many voters’ polling places, confusing voters who are accustomed to voting in a particular location…
Finally, county election boards (or a superintendent appointed to replace that board) must certify the results of an election once all the votes in that county are tallied. It’s not at all clear what happens if local election administrators refuse to certify an election because they don’t like the result. But the statewide bodies that could plausibly resolve such a dispute – including the State Elections Board, the state legislature, and the state supreme court – are currently controlled by Republicans.
Steve M adds this:
Old-school Republican vote stealers know that rejecting election results would look bad even to apolitical moderates. They’d rather not do this. They’re hoping they can decrease Democratic turnout enough to win on Election Night.
Trumpist methods of election theft might be the GOP’s weapon of choice in the future. But I think they still want the elections to look legitimate.
Perhaps so, but neither method is Keystone Cops stuff. Trump is methodical. CNN’s Zachary Wolf reports this:
President Donald Trump – back in the final days of his presidency – didn’t exactly make a secret of his effort to overturn the election he’d just lost and so it’s very easy to get tired of thinking about it, now that he’s out of office and his official powers have been clipped.
But in addition to the lies he was spreading all along, we continue to learn new and disturbing details about his obstinate and pernicious efforts to poison the system from within, which included an “Apprentice”-style showdown between two top Justice Department officials at the White House and threats of resignation.
Woven together, they show that Trump’s assault on democracy, which looks more and more like an attempted coup, was even more reckless and insistent than previously thought.
Trump really was focused:
Trump pressured acting DOJ officials like acting Attorney General Jeffrey Rosen on December 27 to “Just say that the election was corrupt + leave the rest to me and the R. Congressmen,” according to the notes of acting Deputy Attorney General Richard Donoghue’s notes, shared with House investigators.
A day later, on December 28, at least one acting DOJ official, Jeffrey Clark, who was in charge of the civil division, apparently bought into Trump’s lies, or wanted to assuage him, and drafted a letter suggesting there were election irregularities in the election (there weren’t), but it was rebuffed by other top acting officials.
Officials like Rosen’s chief of staff Patrick Hovakimian drafted letters of resignation in case his boss was pushed out in favor of Clark…
It’s the threat of a block of DOJ resignations among the acting officials (these people, as acting officials, were supposed to be Trump loyalists) that may have stopped Trump from a last-minute firing of officials at Justice.
This is new information and that was a close call and also explains the chain of events:
Trump’s pressure on Rosen and Donoghue came exactly one day after the final resignation of former Attorney General William Barr.
Barr left the administration in its final month, not long after he’d told a reporter the truth, that there was no evidence of widespread voter fraud that could change the outcome of the election.
Trump exploded at this perceived betrayal by Barr in a White House meeting documented by Jonathan Karl in a forthcoming book.
On Barr’s last day, Trump was on the phone with officials in Georgia, encouraging them to “find” votes. They wouldn’t do it.
Now this all makes sense. That new House select committee is now able to build a timeline:
These details will come out in a fuller narrative now that House investigators are interviewing former Trump officials.
That official record will supplement the details we already knew, like the “Apprentice”-style showdown, which went on for hours, where Rosen and Clark each presented arguments to Trump about how to proceed in his final days.
That occurred January 3. Three days later, Trump’s supporters attacked the Capitol to stop the counting of electoral votes.
Wolf also notes this:
It’s good news that even officials once perceived as Trump loyalists would not help him overturn the election. But it all needs to be considered in context and with the knowledge that Trump could very well run for the White House again.
It’s also worth considering whether he broke the law by exerting pressure to break the US democratic process.
“Forget about a crime. I see several federal crimes here,” said the former federal prosecutor and CNN analyst Elie Honig, who has recently published a book that is an indictment of Barr’s time in the Trump administration.
Honig added more to that:
I’ll be specific. It is a federal crime to deprive a state of a fair election.
It is a federal crime to solicit false counting of ballots, false certification of an election.
It is a federal crime to conspire against the United States.
Now, could a good defense lawyer come in and quibble with this or try to poke holes in it? Sure. I gladly take on that fight.
Trump could be in real trouble here. This wasn’t and isn’t some Keystone Cops Coup. Here, what is comic is rather frightening. Mack Sennett never tried that. But those were simpler times.