Will the United States of America experience a coup in 2020?

[grumbler]

I've mentioned it before - I think the scenario goes something like this.

Trump is defeated: broadly in the popular vote, but more narrowly in the electoral college.  Trump goes on an epic rant about how the election was fraudulent and stolen.  One or two states are dominated by Republicans, but narrowly go for Biden.  The Secretary of State refuses to ratify those results, citing Trump's claims of fraud.  The state legislature then meets and passes a Trump slate of electors.  This actually happened in Florida in 2000, but became moot when Bush v Gore came out.  This would in fact appear to be constitutional, although wildly undemocratic.  It gets challenged in the courts, but in a USSC with a conservative majority, it's upheld.

And there you go.  That's how Trump steals the election.  It's probably not exactly a coup as it would appear to be constitutional, but it's pretty close.

The fly in the ointment of this scenario is that state legislatures cannot change the rules on selecting electors after the election.  The Constitution requires all electors to be selected on the same day.  If a state cannot certify its electors by the method they have chosen for election day, then they don't have any electors at all.

[The Brain]

One thing I can say about this topic is that I'm less skeptical now than I was a week ago of the possibility of Maidan here in US in case GOP pushes their democratic legitimacy to the breaking point.  Hopefully Roberts and his ilk get the same impression, before they do anything stupid.

You misspelled Maidanek.

[grumbler]

Ok, so you are looking for details of a conspiracy.

Call it what you want, I am looking for the scenario (like BB proposed above).

[Barrister]

I've mentioned it before - I think the scenario goes something like this.

Trump is defeated: broadly in the popular vote, but more narrowly in the electoral college.  Trump goes on an epic rant about how the election was fraudulent and stolen.  One or two states are dominated by Republicans, but narrowly go for Biden.  The Secretary of State refuses to ratify those results, citing Trump's claims of fraud.  The state legislature then meets and passes a Trump slate of electors.  This actually happened in Florida in 2000, but became moot when Bush v Gore came out.  This would in fact appear to be constitutional, although wildly undemocratic.  It gets challenged in the courts, but in a USSC with a conservative majority, it's upheld.

And there you go.  That's how Trump steals the election.  It's probably not exactly a coup as it would appear to be constitutional, but it's pretty close.

The fly in the ointment of this scenario is that state legislatures cannot change the rules on selecting electors after the election.  The Constitution requires all electors to be selected on the same day.  If a state cannot certify its electors by the method they have chosen for election day, then they don't have any electors at all.

But the electors are never selected on Election Day.  It's not unusual to not even have the final counts done on election day, never mind the possibility of recounts.  My recall from 2000 (which was about Florida, and other states may do the mechanics of it differently) is that the electors are only, finally, selected, when the Secretary of State certifies the result.

I'm not saying that such a scheme wouldn't be open to quite serious legal challenges, but if you think conservative judges are "all in" for Trump (which I'm not sure they are) there is a path to tyranny.

It's not that the state legislature goes ahead and has a second vote.  It's just they assert that on election day Trump would have won without the nonexistent fraud, and use that as the basis to select a slate of Trump electors.

[grumbler]

But the electors are never selected on Election Day.  It's not unusual to not even have the final counts done on election day, never mind the possibility of recounts.  My recall from 2000 (which was about Florida, and other states may do the mechanics of it differently) is that the electors are only, finally, selected, when the Secretary of State certifies the result.

I'm not saying that such a scheme wouldn't be open to quite serious legal challenges, but if you think conservative judges are "all in" for Trump (which I'm not sure they are) there is a path to tyranny.

It's not that the state legislature goes ahead and has a second vote.  It's just they assert that on election day Trump would have won without the nonexistent fraud, and use that as the basis to select a slate of Trump electors.

I am not sure that I believe that the electors are no selected on election day.   It is true that the results of the selection are not known until the election is certified, but the selection has occurred.  Otherwise, it is the Secretary of State that actually selects them by certifying the vote, and that occurs on different days in each state, contrary to the Constitution's requirement that all selections occur on the same day.

You have given me the idea for a more plausible scenario in the same vein, though; suppose that Trump, believing that he will lose the vote in State X (or States X, Y, and Z) simply directs a complaisant legislature or legislatures to change the method of selecting electors before the election so that the state legislatures select pro-Trump electors on election day, giving Trump the victory.  that would not be a coup nor even a violation of the spirit of the Constitution.  If he has the power to control the state legislatures after the election, he surely has it before the election.  There is no need for any sort of conspiracy at all.

[Josephus]

I just think you're being naive. If Trump argues that the election was "rigged" and "unfair" and "unlawful" he very well may have the judiciary agreeing with him. And don't forget if he loses, he is still presdient until January, giving him plenty of time to rally support. The impeachment trial has totally emboldened him.

I just think you can't come up with an actual plausible scenario, so simply repeat that something bad could happen over and over to cover the lack.  There's no point discussing this until you have an argument that foes beyond "maybe the bad man will do something bad."

I've mentioned it before - I think the scenario goes something like this.

Trump is defeated: broadly in the popular vote, but more narrowly in the electoral college.  Trump goes on an epic rant about how the election was fraudulent and stolen.  One or two states are dominated by Republicans, but narrowly go for Biden.  The Secretary of State refuses to ratify those results, citing Trump's claims of fraud.  The state legislature then meets and passes a Trump slate of electors.  This actually happened in Florida in 2000, but became moot when Bush v Gore came out.  This would in fact appear to be constitutional, although wildly undemocratic.  It gets challenged in the courts, but in a USSC with a conservative majority, it's upheld.

And there you go.  That's how Trump steals the election.  It's probably not exactly a coup as it would appear to be constitutional, but it's pretty close.

What he said.

[Josephus]

Why is Jos scenario not plausible?

Because it isn't a scenario, it is just "Orange Man Bad."  A scenario describes a specific possibility, not "suppose Spartacus had a Piper Cub."

No. that's not true.  I laid out a general example of how Trump can say the election was rigged, unfair and unlawful and then uses his support in the senate and judiciary to declare the election null and void. BB, being a lawyer, argued my point for me better. You should see the bill he just sent me.

[merithyn]

My statement was that the emo ones are the ones saying that the evidence-based logical approach is "naive," not the ones disagreeing with me.  It is possible to argue against a point without making your argument about the author of the point.

Not on Languish it isn't.

[Barrister]

Actually, the problem with my scenario is it only works for Florida.  Florida is the only swing state where Republicans control all three levels of state government ((legislature, senate, governor).

There are 20 other states where Republicans control the government, but they're all states Trump should win anyways.

I'm playing around with this map: https://www.270towin.com/

I mean sure there's some talk a Texas or Georgia could be in play (which are Republican controlled).  But if Trump loses those states he's losing in a lot of other places too and wouldn't be remotely close to 270.

[Razgovory]

https://www.vox.com/policy-and-politics/2020/6/3/21257133/trump-2020-election-meltdown-lawrence-douglas?fbclid=IwAR1UrmeiljANflo8qRRCzs3IE24uRV9IXw8om_pIFAHPUqBczY9HB4d4lxQ

Imagine that it's November 3, 2020, and Joe Biden has just been declared the winner of the presidential election by all the major networks except for Fox News. It was a close, bitter race, but Biden appears to have won with just over 280 electoral votes.

Because Election Day took place in the middle of a second wave of coronavirus infections, turnout was historically low and a huge number of votes were cast via absentee ballot. While Biden is the presumptive winner, the electoral process was bumpy, with thousands of mail-in votes in closely fought states still waiting to be counted. Trump, naturally, refuses to concede and spends election night tweeting about how "fraudulent" the vote was.

We knew this would be coming; he's been previewing this kind of response for a while now.

One day goes by, then a few more, and a month later Trump is still contesting the outcome, calling it "rigged" or a "Deep State plot" or whatever. Republicans, for the most part, are falling in line behind Trump. From that point forward, we're officially in a constitutional crisis.

This is the starting point of a new book by Amherst College law professor Lawrence Douglas called Will He Go? Trump and the Looming Election Meltdown in 2020. According to Douglas, a scenario like the one above is entirely possible, maybe even probable. And if nothing else, we've learned in the Trump era that we have to take the tail risks seriously. Douglas's book is an attempt to think through how we might deal with the constitutional chaos of an undecided — and perhaps undecidable — presidential election.

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I spoke to Douglas by phone about why he thinks our constitutional system isn't prepared for what might happen in November and why he's not worried about a stolen election so much as an election without an accepted result. "If things go a certain way," he told me, "there's a Chernobyl-like defect built into our system of presidential elections that really could lead to a meltdown."

A lightly edited transcript of our conversation follows.

Sean Illing
What worries you most about the November election?

Lawrence Douglas
To say that we're facing a perfect storm is clichéd, but it does strike me that there are a lot of things coming together that could spell for a chaotic election.

Foremost among them is the fact that we have a president of the United States who has pretty consistently and aggressively telegraphed his intention not to concede in the face of an electoral defeat, especially if that electoral defeat is of a very narrow margin. And it looks like it probably will be a narrow margin. In all likelihood, the 2020 election is going to turn on the results in probably the three swing states that determined the results in 2016: Michigan, Pennsylvania, and Wisconsin.

The other concern is that if we do fall into an electoral crisis and we start seeing the kinds of challenges to the results that we saw back in year 2000, during Bush v. Gore, then we could really see a meltdown because our contemporary political climate is so polarized. That's what led me to start asking, what types of federal laws do we have in place? What kind of constitutional procedures do we have in place to right the ship?

And what I found is that they just don't exist.

Sean Illing
What does that mean, exactly? Are we racing toward a constitutional crisis?

Lawrence Douglas
In a word, yes.

What makes our situation particularly dangerous is it's not simply the statements that come out of Trump. We're pretty used to Trump making statements that leave us all gobsmacked at this point. What worries me is that if there are going to be any guardrails protecting us from his attacks on the electoral process, it would have to come from the Republican Party. And we've seen that Republican lawmakers simply are not prepared to hold this guy to account.

We saw that in the impeachment proceeding, where it was really astonishing that you have Mitt Romney as the only Republican voting in the Senate to remove the president. And it was only, what, eight years ago that Mitt Romney was the standard-bearer of the party in the national election.

It's a pretty disturbing erosion of democratic norms.

Sean Illing
If you're right that the Republican Party isn't going to stand up for the rule of law, where does that leave us legally and politically?

Lawrence Douglas
If you have a president who is really pushing the argument that fraud cost him the election, he really does have the opportunity to push things to Congress. And what I mean by that is that Congress is the body that ultimately tallies Electoral College votes.

It's not inconceivable that you have states that submit competing electoral certificates. And I won't go into the nitty-gritty about how that happens, but it can happen. And if that happens and you have a split Congress between the Senate Republicans and the House Democrats, there is basically no way to resolve the dispute.

Sean Illing
Let's say that happens and we enter January 2021 without a political consensus on who won the election. What then?

Lawrence Douglas
I'm not trying to be an alarmist here, but it's possible to imagine, come January 20, that we don't have a president. By the terms of the 20th Amendment, Trump ceases to be president at noon on January 20 and [Mike] Pence likewise ceases to be vice president.

At this point, by the terms of the presidential succession act of 1947, the speaker of the House, Nancy Pelosi, could become acting president, but only if she resigns her House seat. But what if Trump continues to insist that he has been reelected and is the rightful president? Imagine if, come January 20, Trump stages his own inauguration ceremony with Clarence Thomas issuing the oath of office.

Then we might have Nancy Pelosi and Trump both claiming to be the commander in chief. This is a world of hurt.

Sean Illing
What about the Supreme Court?

Lawrence Douglas
I think a lot of people assume the Supreme Court would step in and end things before they got too chaotic. This is more or less what happened in 2000.

But it's very misleading to think that it was the Supreme Court that settled the 2000 election. It really wasn't the Supreme Court in the decision Bush v. Gore that ended things — it was Al Gore. Al Gore, for the good of the country, decided to accept the Supreme Court's ruling. I'd say it's impossible to imagine Trump doing anything like that.

Besides, if it did intervene, I'm not sure that Congress would abide by a court ruling. Because so many experts [here and here] say the Court really doesn't have jurisdiction to resolve an electoral dispute once it hits Congress.

Sean Illing
Let's imagine that the election happens and Biden wins convincingly enough that the vast majority of the country, even most Republicans, accept the outcome. In that case, Trump — and a small wing of hardliners — may refuse to concede, but both parties basically accept the results.

What happens then? Would federal marshals have to go in and drag Trump out of the White House?

Lawrence Douglas
Here's the thing: That's not the scenario I'm worried about. If Trump loses decisively, I think his opportunities for creating mayhem will be dramatically curtailed

What worries me is that I don't see him losing in that fashion. I could certainly imagine him losing decisively in the popular vote, as he did in 2016, but I can't imagine him losing that decisively in the Electoral College. And everything will turn on what happens in these swing states.

This is going to be an election that is conducted under very unusual circumstances. There are going to be potentially chaotic scenes at polling stations, and god forbid there's a fresh outbreak of Covid-19 in the fall. Then you're also going to have millions of people voting by mail-in.

Sean Illing
Why is that a problem?

Lawrence Douglas
Well, these mail-in ballots are not going to get counted by November 3. That gives someone like Trump space to create incredible chaos.

Imagine a swing state like Michigan. Imagine the November 3 popular vote appears to go to Trump by a small margin. So he declares that he's won Michigan. And Michigan defines the margin of victory in the Electoral College, so he declares that he's been reelected.

Well, as these write-in ballots and these mail-in ballots are counted in the next days, there's this phenomenon that we've seen in the last several elections called the "blue shift." It tends to be the case that mail-in ballots break Democratic. It's typically the case that mail-in ballots come from urban areas, which are predominantly Democratic in their voting patterns.

And so in this case, it's entirely possible that Trump is trailing once all the votes are counted. But then he says, "Those votes are bogus. They shouldn't be counted." And if you look at the political profile of Michigan, again, you find this kind of perfect storm brewing, because the Republicans control the statehouse in Lansing. So let's say they all support Trump, and they all say, "Yeah, we're going to go with the Election Day results. We're going to give our electoral votes all to Trump."

Then we've got total chaos.

Sean Illing
But the governor of Michigan is a Democrat, and my understanding is that it's the governor, along with the secretary of state and the board of electors, who sends the electoral certificate to Congress.

Is that right?

Lawrence Douglas
That's correct. It's the governor who is responsible under federal law to send the electoral certificate of the state to Congress. But that is not to say that the state legislature is barred from sending its own certificate to Congress. You might say, "Well, then, isn't the governor's certificate the proper certificate?" and the answer is that it's up to Congress to make that determination. And if one House accepts the governor's certificate and the other accepts the legislature's certificate, then we're in a stalemate.

Sean Illing
So your main worry is not that the election will be stolen so much as we'll be left without a result?

Lawrence Douglas
Exactly.

Sean Illing
The situation you're describing is almost unthinkable: We have an election and there's simply no binding result.

Lawrence Douglas
Again, I'm not trying to be an alarmist.

Sean Illing
This is pretty damn alarming, Lawrence.

Lawrence Douglas
Look, one of the main points of my book was to say, "Hello, people. If things go a certain way, there's a Chernobyl-like defect built into our system of presidential elections that really could lead to a meltdown."

Sean Illing
Are there any precedents for this?

Lawrence Douglas
We came very close to having something like this happen back in 1876. There was this Hayes-Tilden election, in which three separate states submitted competing electoral certificates to Congress. Congress was likewise divided between House Democrats and Senate Republicans, and they couldn't figure anything out. It was a total stalemate. They eventually jerry-rigged a solution, but that solution only worked because Samuel Tilden, the Democratic candidate, agreed to concede.



Again, I don't see Trump doing that.

Sean Illing
This is an astonishing hole in our Constitution. It's another example of our reliance on norms, not laws or institutions, to keep things humming along.

Lawrence Douglas
It's such a great point. When I was researching the book, I was asking myself, well, what does the Constitution and the federal law do in order to secure the peaceful transition of power? And one of the things that I realized is they don't secure the peaceful succession of power. They presuppose it. They assume that it's going to happen. So if it doesn't happen, well, no one knows ...

Sean Illing
Now, on to another worry: Could the election be postponed?

Lawrence Douglas
No, I don't think so. The president can't do that, because Election Day is set by federal law. You could have Congress change the election, but that would require bicameral support and bipartisan support, and that seems highly unlikely.

Sean Illing
It feels almost pointless to ask this question, but I'll do it anyway: Are you confident that our constitutional system can handle what's potentially coming in November?

Lawrence Douglas
No. I have incredible respect and admiration for our constitutional system, but I'll go back to one of the points you made, which is that the system really assumes that political actors have absorbed the norms that make the system work. But if you have a president who ignores those norms; if you have a party that ignores those norms, that continues to facilitate the rejection of those norms; and if you have a fractured media universe that rewards the president for rejecting those norms, then we're in a very dangerous situation.

The only real way to avoid this is to make sure we don't enter into this scenario, and the best way to do that is to ensure that he loses decisively in November. That's the best guarantee. That's the best way that we can secure the future of a healthy constitutional democracy.

[Barrister]

Interesting article Raz.

[grumbler]

Yeah, Raz, that's a good article, and presents an interesting scenario.  The part that works is the part where states can submit competing slates of electors with different results.  3 USC 15 https://www.law.cornell.edu/uscode/text/3/15 provides that the governor's list shall be the official list, but it is possible that a governor may submit two different lists, for whatever reason, and the Congress has to decide which to accept (or neither, or both!).  Since any given list is only rejected if both houses vote to reject it, it seems to me quite possible that each house votes to accept a different one, in which case both lists would seem to be accepted (provided no law has been made in the state to resolve this kind of issue).  The key here is that nothing is rejected unless both chambers vote to reject it.

I don't think that the part about the legislature of the state voting post hoc to accept the results only from election day and not from mail-in ballots works, though.  The legislatures don't have that power, and I cannot see John Roberts voting in an appeal to retroactively give them that power.  Again, however, if it is argued that Trump has that power to compel states and the courts, he doesn't need to wait until the election to wield it.  He can change the election law in the state he holds in thrall before the election and avoid the controversy.

[Barrister]

Yeah, Raz, that's a good article, and presents an interesting scenario.  The part that works is the part where states can submit competing slates of electors with different results.  3 USC 15 https://www.law.cornell.edu/uscode/text/3/15 provides that the governor's list shall be the official list, but it is possible that a governor may submit two different lists, for whatever reason, and the Congress has to decide which to accept (or neither, or both!).  Since any given list is only rejected if both houses vote to reject it, it seems to me quite possible that each house votes to accept a different one, in which case both lists would seem to be accepted (provided no law has been made in the state to resolve this kind of issue).  The key here is that nothing is rejected unless both chambers vote to reject it.

I don't think that the part about the legislature of the state voting post hoc to accept the results only from election day and not from mail-in ballots works, though.  The legislatures don't have that power, and I cannot see John Roberts voting in an appeal to retroactively give them that power.  Again, however, if it is argued that Trump has that power to compel states and the courts, he doesn't need to wait until the election to wield it.  He can change the election law in the state he holds in thrall before the election and avoid the controversy.

As I understand it, the idea isn't that the states gain this power, it's that it's up to Congress to resolve any dispute.

[grumbler]

As I understand it, the idea isn't that the states gain this power, it's that it's up to Congress to resolve any dispute.

His scenario has the state legislature seizing the power to retroactively invalidate write-in votes:

And so in this case, it's entirely possible that Trump is trailing once all the votes are counted. But then he says, "Those votes are bogus. They shouldn't be counted." And if you look at the political profile of Michigan, again, you find this kind of perfect storm brewing, because the Republicans control the statehouse in Lansing. So let's say they all support Trump, and they all say, "Yeah, we're going to go with the Election Day results. We're going to give our electoral votes all to Trump."

Then we've got total chaos.

Sean Illing
But the governor of Michigan is a Democrat, and my understanding is that it's the governor, along with the secretary of state and the board of electors, who sends the electoral certificate to Congress.

Is that right?

Lawrence Douglas
That's correct. It's the governor who is responsible under federal law to send the electoral certificate of the state to Congress. But that is not to say that the state legislature is barred from sending its own certificate to Congress. You might say, "Well, then, isn't the governor's certificate the proper certificate?" and the answer is that it's up to Congress to make that determination. And if one House accepts the governor's certificate and the other accepts the legislature's certificate, then we're in a stalemate.

The law says explicitly that, barring state provisions to the contrary (which Michigan does not have), the governor's certificate is the authentic one:

If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed... if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted

https://www.law.cornell.edu/uscode/text/3/15 (my bold)

Both houses would have to agree that the governor's vote tally was invalid in order to make the Republican challenge stick.

[Josephus]

Here's what to watch for:

https://www.politico.com/news/magazine/2020/06/04/donald-trump-election-disruption-2020-294721