So, Am I Being Defeatist?

 

I can already hear a lot of people complain that I am being defeatist here, assuming that a Trump victory is all but assured and asking how to deal with it.  To which I can only answer, yes, that’s what the polls say.  And yes, I know, polls can change, but these ones have been remarkably stable.  Yes, Biden got a little bump after his State of the Union, but it proved fleeting.  Trump appears to be having a reverse bump following is conviction, but that may also be fleeting.  As of right now, a Trump victory is at a minimum at 50% chance, which makes it something we have to plan for.

But it is not just that.  Trump has all the advantage that a cheat has over an honest player.  And Trump is not just a cheat, but by now backed by a whole party of cheats who are pledged not to recognize his defeat as legitimate.  So let’s game out a Biden victory and see just what he has to get past to assume the White House.

First of all, there is a general consensus that Georgia, Arizona and Nevada are out of reach, so any win will come down to Pennsylvania, Michigan and Wisconsin.  That is good in the sense that all three states have Democratic Governors and Secretaries of State, who can be counted upon to certify a Biden victory if it happens.  Better yet, Pennsylvania and Michigan have Democratic legislatures, so no risk of either state legislature choosing an alternate slate of electors.

That bad news is that Biden will need all three states to win.  The loss of even one will swing the election to Trump, and one can be sure that Republicans will pull out all the stops.  Since Pennsylvania Democrats control the executive and legislative branches in Pennsylvania and Michigan, sabotage will have to take place at the county level, but there are plenty of opportunities. 

In Michigan the matter got dramatic coverage – each county has a board of two Democrats and two Republicans who must certify results, and the state has a similar board.  In 2020, Republicans sought to refuse to certify the counties Biden won.  Can anyone doubt that they will do the same thing this time around, and probably Republicans on the state board will try to certify the result minus the Biden counties.  Naturally, Democrats on the state board will refuse to go along with that, and our media will probably treat these things as equivalent.

I am less familiar with the process in Pennsylvania, but it is easy to imagine Republican counties refusing to certify any results at all in order to prevent state-wide certification.  The remedy in both cases is presumably the same – go to court to seek a writ of mandamus ( court order to do one's duty) to order Republican officials to certify the results.  I do hope the courts do not try to enforce their order with fines or imprisonment.  Republican officials can easily wait till the safe harbor is passed, which loudly proclaiming themselves martyrs and crying political persecution.  A better option is to appoint a special master to do Republican county officials’ jobs for them.  The officials will doubtless still call that dirty pool, but there will be less opportunities to claim martyrdom.

Wisconsin is a different matter.  In Wisconsin, Republicans control both houses of a thoroughly gerrymandered legislature and can choose an alternate slate of electors.  Of course, Democrats now control the Wisconsin Supreme Court and will doubtless declare those electors invalid, but Republicans will hardly care.  Maybe fake electors will still claim to be the real electors in Michigan, although they were criminally prosecuted last time.  The Pennsylvania fake electors avoided prosecution by claiming they were only casting provisional votes if the official votes were invalidated.  But remember, the loss of even one of these states will throw the election to Trump.

But all of this will be secondary.  The real issue will be decided in Congress.  Recall that in 2020, state Republicans quite heroically resisted pressure from Trump and duly certified Biden when he won.  Republicans in Congress were a different matter.  This time, it appears to be the official position of the Republican party that the November election is an empty formality that Congressional Republicans can disregard at will.  Mitt Romney is retiring, so that leaves one Republican in either house who can be counted on to certify a Biden victory – Lisa Murkowski. 

So what if Pennsylvania, Michigan and Wisconsin all certify Biden electors?  Well, if Democrats control both houses, they will certify a Biden win.  If Republicans control both houses, they will find an excuse to throw out at least one of the states (probably Wisconsin, where the legislature will have an alternate slate of electors) and declare a Trump victory.  Sure, people can challenge the validity of the vote in the Supreme Court, but does anyone think they will actually invalidate Congress’ actions?

What will be interesting is if there is a split  If Republicans control the House and Democrats control the Senate, or if Republican have a 51-49 majority and Murkowski votes to confirm Biden.  The House has several options under the Twelfth Amendment.  One option is that if the houses cannot agree, the Speaker of the House becomes President under the Presidential Succession Act.  Mike Johnson will become President.  The good news -- under the Twenty-Fifth Amendment, his choice for Vice President would have to be approved by both houses.   That would presumably prevent him from naming Donald Trump, which is worth something, but it would still mean that Congress had defeated the will of the voters.

Alternately, the House may declare which slate of electors won in Wisconsin unknowable and say that since neither candidate can be said to have won the “majority of the votes cast” and therefore the matter is cast into the House – which votes by state.  Republicans control the majority of states and can be expected to continue to control the majority of states for the foreseeable future.  The House, voting by states, will naturally choose Trump.  So far as I can tell, there is no way for the Senate to stop them, other than a Supreme Court case that the Supreme Court would presumably refuse to decide.  There would be one drawback here.  In that case, the Senate chooses the Vice President.

If Democrats control the House and Republicans control the Senate, the incentives are reversed.  The decision whether to declare the winner unknowable and throw the matter to the House is decided by a simple majority.  House Democrats could refuse to do that, and the Senate would have no way to force them.  The Senate might declare no winner and attempt to choose a Vice President, but the Twelfth Amendment requires a two-thirds quorum, which Democrats could thwart by walking out.  Once again, presumably the Speaker would become President.  I have no doubt that, faced with the prospect of a President Hakim Jeffries, a small number of Senate Republicans would cave and agree to certify Biden.  (They would, of course, be vilified and face primary challenges). 

So it would appear from this perspective that winning the House is more important than winning the Senate because the Senate is the weaker body in terms of certifying a Presidential election.  On the other hand, the Senate confirms presidential appointments and a Republican Senate would presumably refuse to do so.  That would not be so bad in the case of executive appointments – Biden could presumably stick with the current ones or appoint “acting”  executive officials.  But we have to assume that the number one priority in a second Biden term would be to appoint as many young federal judges as possible, and a Republican Senate would block that.

Finally, needless to say, the Capitol would be under martial law while all this was going on to prevent a repeat of January 6.  It should also go without saying that Republicans would cry foul and denounce Biden as a military dictator, even if he took care to have the National Guard merely surround the Capitol and not enter it.  I am open to persuasion both ways whether martial law would be needed up to the inauguration.  In 2021 it was clearly necessary.  On the one hand, insurrections take time to plan, and would-be insurrectionists appeared to have taken their chance and lost it.  But some last, desperate action to prevent an inauguration could not be ruled out.  This time, Biden is well-entrenched in the White House.   But certainly, there would be no excuse for martial law after the inauguration.  (It was maintained well past what was necessary last time).

And this is what our country has come to!