In early December, a month after the election was called, after all “disputed” states had certified Biden’s victory (Georgia, Arizona, Nevada, Wisconsin, Michigan, and Pennsylvania), with some certifying a second time after recounts, after 40-odd lawsuits from Trump, Republican officials, and conservative voters had failed miserably in the American courts, the insanity continued: about 20 Republican states (with 106 Republican members of the House) sued to stop electors from casting their votes for Biden; only 27 of 249 Republican congresspersons would acknowledge Biden’s victory. Rightwing media played along. A GOP state legislator and plenty of ordinary citizens pushed for Trump to simply use the military and martial law to stay in power. The Trump administration contemplated using the National Guard to seize voting machines.
At this time, with his legal front collapsing, the president turned to Congress, the state legislatures, and the Electoral College. Trump actually pushed for the Georgia legislature to replace the state’s 16 electors (members of the 2020 Electoral College, who were set to be Biden supporters after Georgia certified Biden’s win weeks prior) with Trump supporters! Without any ruling from a court or state in support, absurd imaginings and lies about mass voter fraud were to be used to justify simply handing the state to Trump — a truly frightening attack on the democratic process. Officials in other battleground states got phone calls about what their legislatures could do to subvert election results as well (state secretaries later being asked to “recalculate” and told things like “I just want to find 11,780 votes”). And it was theoretically possible for this to work, if the right circumstance presented itself. ProPublica wrote that
the Trump side’s legislature theory has some basis in fact. Article II of the U.S. Constitution holds that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” to vote for president as a member of the Electoral College. In the early days of the republic, some legislatures chose electors directly or vested that power in other state officials. Today, every state allocates presidential electors by popular vote…
As far as the Constitution is concerned, there’s nothing to stop a state legislature from reclaiming that power for itself, at least prospectively. Separately, a federal law, the Electoral Count Act of 1887, provides that whenever a state “has failed to make a choice” in a presidential election, electors can be chosen “in such a manner as the legislature of such State may direct.”
Putting aside how a battle between certified election results and misguided screams of election fraud might be construed as a “failure to make a choice” by a Trumpian judge somewhere, the door is open for state legislatures to return to the days of divorcing electors from the popular vote. The challenge, as this report went on to say, is that in these battleground states, the popular vote-elector connection “is enshrined in the state constitution, the state’s election code or both,” which means that change was only impossible in the moment because a party would need dominant political power in these states to change the constitutions and election codes — needing a GOP governor, control of or supermajorities in both houses of the legislature, even the passing of a citizens’ vote on the matter, depending on the state. Republican officials, if willing to pursue this (and true, not all would be), couldn’t act at that particular moment in history because success was a political impossibility. Wisconsin, Michigan, and Pennsylvania, for instance, had Democratic governors and enough legislators to prevent a supermajority veto override. But it isn’t difficult to envision a parallel universe or future election within our own reality where a couple states are red enough to reclaim the power to appoint electors and do so, returning someone like Trump to office and making voting in their states completely meaningless.
In the exact same vein, House Republicans laid plans to challenge and throw out electors in January. This was theoretically possible, too. Per the procedures, if a House rep and senator together challenge a state’s slate of electors, the Congress as a whole must vote on whether to confirm or dismiss the electors. The latter would reduce the electoral votes of one candidate. Like the state legislature intervention, this was sure to fail only due to fortunate political circumstances. The Independent wrote, “There’s no way that a majority of Congress would vote to throw out Biden’s electors. Democrats control the House, so that’s an impossibility. In the Senate, there are enough Republicans who have already acknowledged Biden’s win (Romney, Murkowski, Collins and Toomey, to name just a few) to vote with Democrats.” Would things have gone differently had the GOP controlled both houses?
Desperate, Republicans even sued Mike Pence in a bizarre attempt to make the courts grant him the sole right to decide which electoral votes counted! Rasmussen, the right-leaning polling institution, liked this idea, favorably lifting up a (false) quote by Stalin saying something evil in support of Pence throwing out votes. The vice president has the ceremonial duty of certifying the electoral votes after they are counted in Congress — Trump and others pushed Pence hard to simply reject votes for Biden. There is no law giving the vice president this authority. Pence refused to do this, understanding the illegality, but if he had played along the courts would have had to confirm that the Electoral Count Act of 1887 granted the vice president ceremonial, not decision-making, power if democracy was to survive.
Indeed, all that would be needed for success after such acts are judges to go along with them. Given that such changes are not unconstitutional, final success is imaginable, whether in the lower courts or in the Supreme Court, where such things would surely end up. It’s encouraging to see, both recently and during Trump’s term, that the judicial system has remained strong, continuing to function within normal parameters while the rest of the nation went mad. In late 2020, Trump and rightwing efforts to have citizen votes disqualified and other disgusting moves based on fraud claims were tossed out of the courtrooms due to things like lack of something called “evidence.” Even the rightwing Supreme Court, with three Trump appointees, refused to get involved in and shot down Trump’s nonsense (much like Trump’s own Justice Department and Department of Homeland Security). Yet we waited with bated breath to see if this would be so. It could have gone the other way — votes thrown out despite the lack of evidence, such decisions upheld by higher courts, results overturned. That’s all it would have taken this time — forget changing how electors are chosen or Congress (or Pence) rejecting them! If QAnon types can make it into Congress, if people like Trump can receive such loyalty from the congresspersons who approve Supreme Court justices and other judges, if someone like Trump can win the White House and be in a position to nominate justices, the idea of the absurdity seeping into the judicial system doesn’t seem so far-fetched. Like other presidents, Trump appointed hundreds of federal judges. And if that seems possible — the courts tolerating bad cases brought before them — then the courts ruling that states can return to anti-democratic systems of old eras or tolerating a purge of rightful electors seems possible, too. Any course makes citizen voting a sham.
The only bulwark to the overturning of a fair election and the end of American democracy was basically luck, comprising, before January 6 at any rate: 1) a small group of Republican officials being unable to act, and/or 2) a small group of judges being unwilling to act. It isn’t that hard to imagine a different circumstance that would have allowed state legislators or Congress or the vice president to terminate democracy and/or seen the Trumpian insanity infecting judges like it has voters and elected officials. In this sense, we simply got extremely lucky. And it’s worth reiterating that Number 1 needn’t even be in the picture — all you need is enough judges (and jurists) to go along with the foolishness Trump and the GOP brought into the courtroom and real democracy is finished.
(If interested to know exactly how many people would be required to unjustly hand a battleground state to the loser, the answer is 20. This includes a U.S. district judge and jury, a majority of an appellate court, and a majority of the Supreme Court. This number drops to just eight if the district court somehow sees a bench trial, without a jury. But at most, the sanity of just 20 people stands between democracy and chaos in each state. In this election, one state, any of the battleground states, would not have been enough to seize the Electoral College, you would have needed three of them. Meaning at most five Supreme Court justices and 45 judges and jurors. In this sense, this election was far more secure than some future election that hinges on one state.)
Then on January 6, we noticed that our luck was comprised of something else. It also included 3) a military that, like our justice system, hadn’t lost its mind yet. More on that momentarily.
When January 6 arrived, and it was time for Congress to count and confirm the Electoral College votes, GOP House reps and senators indeed came together to object to electors, forcing votes from both houses of Congress on elector acceptance. Then a Trumpian mob, sizably armed, overwhelmed the police and broke into the Capitol building to “Stop the Steal,” leaving people dead and IEDs needing disarming — another little hint at what a coup, of a very different sort, might look and feel like. Though a few Republicans changed their minds, and plans to contest other states were scrapped, 147 Republican congresspersons still voted to sustain objections to the electors of Arizona and Pennsylvania! They sought to not confirm the electoral votes of disputed states until an “election audit” was conducted. Long after the courts (59 cases lost by then), the states (some Republican), and Trump’s own government departments had said the election was free and fair, and after they saw how Trump’s lies could lead directly to deadly violence, Republicans continued playing along, encouraging the continued belief in falsities and risking further chaos. They comprised 65% of GOP House members and 15% of GOP senators. (Some did the right thing: 10 Republicans in the House would vote to impeach Trump, seven in the Senate to convict.) This time, fortunately, there wasn’t enough congressional support to reject electoral votes. Perhaps next time there will be — and a judicial system willing to tolerate such a travesty.
Recent times have been a true education in how a democracy can implode. It can do so without democratic processes, requiring a dear leader spewing lies, enough of the populace to believe those lies, enough of the most devout to take violent action, and military involvement or inaction. If armed supporters storm and seize the Capitol and other places of power then it doesn’t really matter what the courts say, but this only ultimately works if the military does it or acquiesces to it. While the January 6 mob included active soldiers and veterans, this had no support from the branches, instead condemnation and protective response. This was ideal, but next time we may not be so fortunate. But the end of the great experiment can also happen through democratic processes. Democratic systems can eliminate democracy. Other free nations have seen democracy legislated away just as they have seen military coups. You need a dear leader spewing lies to justify acts that would keep him in charge, enough of the populace to believe those lies, enough of the dear leader’s party to go along with those lies and acts for power reasons (holding on to branches of government), and enough judges to tolerate such lies and approve, legitimize, such acts. We can count our lucky stars we did not see the last one this time, but it was frightening to witness the first three.
Trump’s conspiracy theories about voter fraud began long before the election (laying the groundwork to question the election’s integrity, only if he lost) and continued long after. Polls suggested eight or nine of every ten Trump voters believed Biden’s victory wasn’t legitimate; about half of Republicans agreed. So many Republican politicians stayed silent or played along with Trump’s voter fraud claims, cementing distrust in the democratic process and encouraging the spread of misinformation, which, like Trump’s actions, increased political division, the potential for violence, and the odds of overturning a fair election. As with voter suppression, gerrymandering, denying justice confirmation votes, and much else, it is clear that power is more important than democracy to many Republicans. Anything to keep the White House, Congress, the Supreme Court. You can’t stand up to the Madman and the Masses. The Masses adore the Madman, and you can’t lose their votes (or, if an earnest supporter, go against your dear leader). Some politicians may even fear for their safety.
It was frightening to realize that democracy really does rest, precariously, on the truth. On human recognition of reality, on sensible standards of evidence, on reason. It’s misinformation and gullibility that can end the democratic experiment, whether by coup or democratic mechanisms or both.
What would happen next? First, no one would be punished, at least not for long. American law allows presidential pardons, another systemic weakness. Anyone who joined a violent coup or quietly worked against democracy would be forgiven and legitimated by the victorious president. Trump, after using this power during his term to free corrupt allies, later vowed to forgive the January 6 rioters if he ever returned to the White House.
More broadly, tens of millions of Americans would celebrate. They wouldn’t be cheering the literal end of democracy, they would be cheering its salvation, because to them fraud had been overcome. So a sizable portion of the population would exist in a delusional state, completely disconnected from reality, which could mean a relatively stable system, like other countries that drifted from democracy. Perhaps the nation simply continues on, in a new form where elections are shams — opening the door to further authoritarianism. Despite much earnest sentiment toward and celebration of democracy, there is a troubling popularity of authoritarianism among Trump voters and to a lesser extent Americans as a whole. Unless the rest of the nation became completely ungovernable, whether in the form of nationwide strikes and mass civil disobedience or the actual violence that the typically hyperbolic prophets of “civil war” predict, there may be few alternatives to a nation in a new form. Considering Congress would need high Republican support to remove a president, or considering Congress would be neutered by the military, an effective governmental response seems almost impossible.
We truly witnessed an incredible moment in U.S. history. It’s one thing to read about nations going over the cliff, and another to see the cliff approaching before your very eyes. Reflecting the rise of authoritarians elsewhere in history, Trump reached the highest office using demagoguery (demonizing Mexicans and illegal immigrants, Muslims, China, the media, and other existential threats) and nationalism (promising to crush these existential threats and restore American greatness). The prejudiced masses loved it. As president his worst policies not only acted upon his demagoguery, with crackdowns on all legal immigration, Muslim immigrants, and illegal immigrants, he also consistently gave the finger to democratic and legal processes, such as ordering people to ignore subpoenas, declaring a national emergency to bypass congressional power and get his wall built, obstruction of justice (even a Republican senator voted to convict him of this), and so on. Then, at the end, Trump sought to stay in office through lies and a backstabbing of democracy, the overturning of a fair vote. And even in all this, we were extremely lucky — not only that the judicial and military systems remained strong (it was interesting to see how unelected authorities can protect democracy, highlighting the importance of some unelected power in a system of checks and balances), but that Trump was always more doofus than dictator, without much of a political ideology beyond “me, me, me.” Next time we may not be so fortunate. America didn’t go over the cliff this time, but we must work to ensure we never approach it again.