The Vote Flow Charts

 

New category for my posts, "Can US Democracy be Saved?"  Needless the say, the fact that I am asking such a question suggests that I am NOT optimistic.  Probably a lot of posts to this label will be short and angry.  

Today I will start with the act of voting.  The Republican approach to an election and whether to recognize the outcome has become so complex, involving so many stages, that it really calls for a flow chart.  And, it should be added, since not all Republican agree on the proper procedure to follow, multiple flow charts.  So I prepared some.  Here we go.

The old model.

Once upon a time, long, long ago, the rule was simple and could be portrayed in the flow chart on the left.. If the Republican candidate got more votes, the Republican won.  If the Democratic candidate got more votes, the Democrat won.  This model applied at all levels of government, although due to gerrymanders, a minority of voters could choose a legislative majority.  

This model has not been in use at least since 2000, and possibly earlier.  

The recount model

Since 2000, and possibly earlier, recounts have become widely accepted when the vote is very close.  Details depend on the state, but in most states if the vote is closer that a certain number, recount is mandatory.  (I have used .5% as my numbers, although the total varies by the state.  The flow chart for this model is somewhat complex and messy, but it is symmetrical.  Each party has three paths to victory.  It can win by more than the recount threshold; it can win but less than the recount threshold and then prevail on a recount or (rarely) it can overturn the original result of the recount shows a change in who had the most votes.  

This is the model that was followed by both parties from 2000 to 2020.  It continues to be the accepted model for Democrats to this day.  Republicans who accept this model are invariably now ex-Republicans.  During the 2020 election, difference Republicans selected a wide variety of models as to where to draw the line in attempting to overturn a Democratic election victory.  Whether they have reached consensus on any particular model since the election remains to be seen.

The Republican Judge Model, probably accepted by Liz Cheney*

This model allows voting restrictions that make it harder for Democratic constituencies to vote, but requires Republicans to accept the results if the Democrat nonetheless wins. I was going to call this the Liz Cheney model, but that may or may not be accurate.  Liz Cheney has made clear that she condones voting restrictions and most emphatically does NOT condone violent insurrection. But there are various other places one can draw the line on attempting to overturn an election result, and Liz has not made clear where she draws that line.  So I have called it the Republican Judge Model.  Federal judges, many of them Republican appointees and even some Trump appointees, have generally let stand Republican voting restrictions, but unanimously made clear that they will not overturn the result of an election if the Democrat wins the recount.

The Mitch McConnell Institutional Model

This model allows a Republican who loses to file an unlimited number of lawsuits, regardless of merit, to overturn the results, but requires the Republican to accept the results if the lawsuits fail. I called this the Mitch McConnell Institutional model because Mitch McConnell was praised as an "institutionalist" for eventually publicly accepting the results and urging all Senate Republicans to do the same.  Properly speaking, though, this should not be called the McConnell model, since the trigger for McConnell accepting the results was not Trump's lawsuits failing, but the electoral college voting to certify.  Maybe I should call it the Jamie Raskin model since Raskin -- the House impeachment manager! -- acknowledge filing a large number of completely worthless lawsuits as legitimate.  

As with many of these other models, it is not clear how many Republicans still hold to it. In 2020 and the beginning of 2021, there were significant numbers of Republicans who said that if a lawsuit to overturn the election failed, the Republican must concede defeat.  It is not clear how many still agree.

The Tom Cotton Model

Here things are starting to get complicated because I am making my flow charts in institutional order while events actually unfolded in chronological order.  After lawsuits fail, I will treat the next attempt as pressuring vote counters to change the number of votes, even though these events took place at the same time.  I will call this the Tom Cotton model because Senator Tom Cotton, after sitting on the fence for a long time, finally came out and said that he would vote to confirm after hearing tapes of President Trump pressuring the Georgia Secretary of State to change the total.  Apparently that was a bridge too far for him.  As with many other steps in this flow chart, it is by no means clear whether that would still be a bridge to far for him today.  Across the country, many Republican legislatures are seeking to pass legislation making it easier for vote counters to change results.

The States Rights Model

The next step is asking state legislatures to appoint Republican electors.  Chronologically, it took place at the same time as lawsuits and attempts to pressure vote counters.  Institutionally, it comes after for two reasons.  First, all these other measures -- voter suppression, lawsuits to overturn elections, and tampering with vote counting -- can be done in any election to any office.  The Electoral College presents other opportunities to overturn the popular vote. One such opportunity is for the state legislature to choose its own set of electors. This is clearly constitutional.  It was the usual practice for choosing electors in the early days of our republic.  This method is barred by statute in all states.  The Arizona legislature proposed a law allowing the state legislature to choose electors, but the attempt was not successful.  Nor does there appear to be any widespread attempt to give state legislatures the power to override the popular vote.  However, if the Republicans are not successful in capturing the vote-counting apparatus in the 2022 election, there may be another push to enact such legislation.

The Deep State/William Barr Model

This approach also (presumably) applies only to presidential elections.  Chronologically, it took place after the Electoral College had voted and attempts to pressure states had become futile. It means using the instruments of the federal bureaucracy -- the deep state, if you will -- to overturn the results. Institutionally, it goes far beyond lawsuits, pressure on vote counters, or state legislatures choosing electors because it jettisons all pretense of legality and moves directly into the realm of raw power.  There was talk of using the military or Homeland Security to declare martial law, and to cancel and rerun the election in key swing states.  This was where William Barr drew the line.  He was willing to use the Department of Justice to conduct an investigation for fraud, but when he did not find any, he resigned rather than go any further.  Given that there is now a Democrat in charge of the federal bureaucracy, this one is off the table, at least for 2024.  Whether it will be revived next time a Republican is president and a Democrat wins remains to be seen.

The Hawley-Cruz Model

This one also applies to presidential elections.  After the Electoral College has voted, Congress meets and certifies the results.  Up until 2021, this was a mere formality, the result having be decided long before.  Select Democrats have objected in recent times, but always as a mere matter of form, and never with the intent of actually overturning the result.  This was the first time there was any serious question of overturning the result. Senators Josh Hawley and Ted Cruz were the most prominent leaders of the refusal to certify, but did accept the results once the certification happened.  People on my side of the spectrum fear not only Republican vote counters refusing to certify a Democrat as winning, but a Republican Congress refusing to certify a Democrat in defiance of the Electoral College.  The best remedy anyone can come up with is the keep Congress from falling into Republican hands, but that can only be a short-term measure.  Sooner or later there will be a Republican majority.  Then what? 

The Insurrectionist Model

I listed this one a presidential only, but it really isn't.  Any time a Democrat wins at any level, Republicans now have the option of inciting a violent insurrection to overturn the results.  Republican office holders generally are not willing to endorse this option outright.  But none of them seem to want to reject it either.

The Arizona Model

It's a classic scene from horror movies.  Just when you think the monster is finally dead, it attacks again.  And even though a violent insurrection has failed and Joe Biden has been inaugurated, Republicans still haven't given up hope of overturning the election.  So what can they do?  Well, in Arizona the Republicans have hired Cyber Ninjas to audit the ballot.  Apparently the "audit" includes shining an ultraviolet light on ballots to see which ones have a water mark that all legitimate ballots supposedly had (they didn't).  It also involves searching ballots for bamboo contamination to see if they were smuggled in from China.  (No, really!)  As with so many other attempts to overturn the election, what was once shocking and scandalous has become normal.  Once, Arizona election officials urged an end to the recount on the grounds that it was making Arizona a laughing stock.  Now Republicans in all the swing states are wanting to imitate Arizona.  

We don't know what the "audit" in Arizona will show.  Presumably neither water marks, nor bamboo.  So will the Cyber Ninjas declare all ballots fraudulent because none of them have water marks?  Will they find some hitherto undisclosed reason to invalidate the election?  Or will their sloppy technique simply come up with a count so different from the official tally to allow critics to declare the outcome unknowable?  

The Michael Flynn Military Coup Model

While Republicans in swing states have endorsed the concept of having Cyber Ninjas examine the ballots for grounds to find the count invalid, they have never explained what will happen.  Donald Trump and Mike Lindell have apparently expressed confidence that the election will be invalidated.  Republican leaders have assured everyone that any serious attempt to overturn the result will lead Republicans to repudiate Trump.  Sort of like the violent insurrection was supposed to lead Republicans to repudiate Trump.  Nonetheless, the serious believe that the election will be overturned remains the province of a fringe.  

And what if the Cyber Ninjas fail to find grounds to overturn the election?  Mainstream Republicans will presumably move on to look for some other grounds.  But a handful of outliers, like Michael Flynn, are proposing a military coup or possible civil war.  In one way, they are being more honest than the bulk of Republican in saying that there is no possible way they would accept a Democratic President as legitimate.

Still, despite this gloom, I will offer one small ray of hope.  There have been four special elections in 2021. Two special elections were narrow victories for Democrats to represent Georgia in the Senate.  One was a sweeping landslide for a Republican to represent Texas in the House. And one was a comfortable margin for a Democrat to represent New Mexico in the House.

In all cases, the results went unchallenged.

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*Presumably Democrats will call for a recount if the Republican wins by a very narrow margin, but needless to say Republicans will not so so, so I have omitted that step in order to save space.