Rationales for it are already deeply entrenched in our political system
It is clear that Trump doesn’t have any credible claims of voter fraud that might overturn the election, at this point. As we should all know by now, Trump’s Presidency has been an endless parade of lies from the first day on.
Still, there’s a real method to his madness and Trump’s challenge to the US election process shouldn’t be underestimated. We’ve already watched him blow up a tiny procedural victory in Pennsylvania into a “big win” that he is using as if it is evidence of extensive fraud. Trump’s main path to victory isn’t about treating the courts as courts, but is instead about using them as a stage for yet another round of Trumpian political theater.
Insofar as other prominent GOP elites humor his absurdly unwarranted claim that he “has won this election by a lot”, he has a chance to generate grassroots pressure for a range of legislative and executive maneuvers. Here’s one possibility among many: the Republican-controlled state legislatures in places like Arizona, Georgia, Pennsylvania and Michigan can decide to send non-representative slates of electors to the Electoral College. Of course, they wouldn’t frame it that way. Instead, they might say something like this: “We’ve decided that the mail-in ballots are too contentious and impossible to evaluate fairly, and so we’re just going to go with the in-person vote this year.” That might not be the exact approach, but the basic idea is that Trump loyalists in these legislatures would have just enough smoke to offer a superficially sane-sounding rationale for ignoring the popular vote in their state. State law is what determines how electors are appointed, and those laws can change if legislatures decide to change them. Excellent reporting from The Atlantic and Radiolab illustrate that this sort of thing is not only possible, but that work has gone into planning a systematic assault on the election and transition process.
As we’ve already seen so many times in the Trump years, it has become apparent that the United States is a nation of norms, not a nation of laws. And norms have repeatedly folded in the face of Trump’s big lie strategy. Are we facing yet another norm collapse, in this case the notion that voters get to choose their electors? Maybe.
In this case, though, I’d be remiss if I simply called this a norm collapse. Obviously there’s an expectation that the majority vote within a state decides its electors, but the Electoral College itself is already notorious because it doesn’t necessarily represent the majority of Americans. And this feature of non-representation runs throughout our entire political system. Our Senate is even more egregiously non-representative than the Electoral College, with Wyoming’s über-citizens getting more than 68 times the representation of California’s Senatorial paupers. The distortion here deeply marks the entire institution of the Senate: a quarter of US voters are given an elite status that lets them elect 62 of our Senators, while another quarter of voters are given one-tenth the status, and elect just 6. The remaining 32 Senators are divvied up among the remaining half of voters, who are essentially treated as half-citizens when it comes to the Senate.
In a similar way, our state legislatures and Congress are also very highly gerrymandered, and have been since 2010’s REDMAP project took the art of drawing bizarre spider-monster districts to a new level. In some cases, a majority of a state’s voters elect Democrats, but gerrymandering transforms this into Congressional and state legislative majorities for Republicans.
If a state legislature is already non-representative of that state, what norm would be violated if Republican legislatures decide to send electors that are similarly non-representative of the state? The idea of representative democracy was already badly broken well before Trump came to power.
So in this nation, it is terribly easy to imagine McConnell responding pragmatically to a rising tide of Trump supporters who are sure the election was stolen, because they trust his deceptive tweets. What would he do? Of course he wouldn’t say that he just wants to smash and grab whatever he can. Instead, he might say something like this, “Our Constitution puts this in the hands of the states. We don’t want federal overreach infringing on States’ rights. (Subtext: like those carpetbaggers after Reconstruction, or when Federal goons forced Brown v. Board down the throats of the states). If only there had been suitable redress to truly identify how extensive the voter fraud is, they wouldn’t have been forced to take those steps. But given the chaos of this election, it was the state legislatures’ duty to exercise their Constitutional authority and send their chosen electors. They did the only thing that could have been done to restore America’s faith in our Constitution and our elections after this press-driven coup.”
Rule number one of Trump’s America: always accuse them of whatever you’re doing.
Is that going to happen? I’m betting that it is still a bridge too far. But after everything we’ve seen, and especially in light of how non-representative these state legislatures already are, I’m not as confident as I wish I could be. I’m also concerned that this serves as a powerful proof of concept that can inspire even more sophisticated attempts in the future.
I also suspect that Trump is going to try every possible play he can, first because he is Trump. But also because he faces a wave of serious criminal and civil litigation as soon as he’s out. In spite of the fact that he has been claiming that Mueller exonerated him for years, that report actually outlines a number of serious paths for litigation. The main reason they haven’t been pursued is because Trump is President. Once he’s out, the US government really might lock him up.
So Trump’s election maneuvers in the courts almost certainly won’t be decisive, if they’re just about the courts. But they can work as political theater that then provides him cover for things like state legislative action. Even if it doesn’t happen this time, it wouldn’t be too hard for the US to settle into a situation where heavily gerrymandered state legislatures seat large Republican majorities even when they get a minority of the vote in those states, and those states slowly decide that control of the legislature lets them legitimately appoint whatever electors they like. What is particularly significant about this sort of deepening “Hungaryization” of the US is that it simply reflects an intensification of the non-representativeness of our current situation.
For the last decade, we have already lived with a situation where a majority can vote for one party, and the other party dominates state legislatures, Congress, the Senate and the Presidency. What have been the consequences to Republicans for this? Mostly just lots of winning, with them holding control of state legislatures and expanding their domination further this year. Why Democrats haven’t taken some fraction of the money they’ve raised and put it into a nationally coordinated series of fair districting campaigns is beyond me, but here we are. If Trump succeeds in radically and spectacularly using this situation to win ugly, it wouldn’t represent something terribly new on the stage of American politics. It would simply represent us continuing down the radically non-representative road we’re already on.
Regardless of party affiliation, this is a large problem for the basic legitimacy of US institutions in the eyes of most of its population, and in the eyes of non-authoritarian governments around the world. But in a situation like ours, a further intensification of a tyranny of a minority will feel entirely legitimate to the dominant group. Of course it won’t appear legitimate or fair to anyone else. But when has fairness or legitimacy ever stopped large numbers of the entitled from feeling entitled?
I’ve talked to plenty of Republicans who love this non-representative system deeply, and who are terrified at the prospect of rural whites being “dominated” by the urban hordes if we implement the principle of “one person, one vote.” That principle, so loathed and feared by so many Republicans, is at stake in Trump’s current power play.
A lot of Republicans truly feel like they are an oppressed minority standing up for their basic rights when they enforce their tyranny of the minority. The deepest irony here is that this system very effectively disenfranchises our country’s actual oppressed minorities, who are disproportionately targeted by the world’s largest prison-industrial complex. This country has never expressed remorse or repentance for trying to take everything from African Americans. Today, that includes taking even the history and present of oppression. Even their systematic disenfranchisement by the political system is justified by the notion that an oppressed minority must be defended from the tyranny of the majority. That “oppressed minority” just happens to be the white majority, who are given superior political status at national, state, and local levels at the expense of actual minorities.
It is already incredibly Orwellian around here. I find it unsettlingly easy to imagine things getting more Orwellian from here.