Biden may be on his way towards winning a clear majority in 2024, but the fascist-connected Republicans are not resigned to their “fate”. What legal covers could they use to overturn an election result and what could be the result?
On April 25, President Biden formally announced his candidacy for reelection. His announcement was made through a pre-recorded video that was politically and technically very well done. It combined both a hopeful message and a warning about the threat the Republicans present. It also combined appeals to the more radical young voters and appeals to more conservative and more middle age swing voters. Among other issues, he hammered at the issue of a woman’s right to choose. This, of course, has been a major vote winner for Democrats ever since the Republican-controlled Supreme Court overturned Roe v Wade.
Assuming there is no major crisis, including an economic crisis, Trump and the Democrats could be headed for a sweeping victory in 2024, with “could” being the operative word.
On the Republican side, Trump seems well on his way towards capturing the nomination, with DiSantis a possible alternative. The latter’s strategy seems to be to out-Trump Trump, with his latest move being to all but completely outlaw abortion in Florida. (He recently signed a bill banning abortion after just six weeks of pregnancy, a time period in which many women don’t even know they’re pregnant.)
The Republicans’ riotous stance has been unpopular with many swing voters and their anti-abortion rights stance is overwhelmingly a vote loser among young voters and women voters. Many Republican strategists know this but they cannot change since they are in the death grip of the Christian, the white nationalist and the gun fanatics. In 2020, a minority of Republican members of congress were willing to overturn the election results. In just a few short years, that has changed. Writing in the NY Times in August of last year, Dana Millbank commented on the result of the Arizona Republican primary. He was commenting on the claim that hundreds of dead people had voted. Millbank wrote: “While the dead might not be voting in large numbers in Arizona, the brain-dead are. Evidently, such voters are now a majority of the Republican primary electorate.”
The Republican representatives reflect their base’s determination to retain power in the White House and on down the line. They are willing to do so by hook or by crook.
One step is to enact legislation that will make voting more difficult and/or distort how votes are counted. The fascist connected Republicans control many state legislatures through super-gerrymandering plus tribal voting whereby Republicans will vote for any Republican, it doesn’t matter if he supports Hitler, just so long as the opponent is a Democrat. However, they are unable to win a majority at the state level, so we have Republican state legislatures and a Democratic governor. However, as the map below shows, the districts are so distorted that there are 19 states in which the Republican majority is so great that they can override a Democratic governor’s veto. They are free to pass almost any legislation they like, including voting rules.
Legal Cover for a Coup
One thing that even the most dense of the Republican strategists (and probably most Republican voters) understands is that they cannot recapture the White House through a simple riot and a violent coup; they need a legal cover.
One avenue is the fake electors scam. In 2020, fake electors in essence appointed themselves in seven states – Arizona, Georgia, Michigan, Nevada, New Mexico, Wisconsin and Pennsylvania. At that time, the Republicans lacked a majority in both houses of congress and, in any case, their fascist-connected wing did not have the death grip that it presently holds. Therefore, they were unable to get congress to throw out the results of the electoral college. 2025 (when the matter is determined) may be different if the Republicans maintain their majority in the House. In that case, the House will decide the result of the presidential election. It is virtually certain who they will choose.
Independent State Legislature Doctrine
Another rout could be through the Supreme Court, using the legal doctrine of the independent state legislatures. Conservative former federal appeals court Judge J. Michael Luttig explained how that legal cover might work. It is worth quoting Luttig at length. He writes: “January 6 was never about a stolen election or even about actual voting fraud…. The Republicans’ mystifying claim to this day that Trump did, or would have, received more votes than Joe Biden in 2020 were it not for actual voting fraud, is but the shiny object that Republicans have tauntingly and disingenuously dangled before the American public for almost a year and a half now to distract attention from their far more ambitious objective….
“Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.
The last presidential election was a dry run for the next.”
Independent State Legislature theory
Luttig continues: “The cornerstone of the plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine…. The independent state legislature doctrine says that, under the Elections and the Electors Clauses of the Constitution, state legislatures possess plenary and exclusive power over the conduct of federal presidential elections and the selection of state presidential electors. Not even a state supreme court, let alone other state elections officials, can alter the legislatively written election rules or interfere with the appointment of state electors by the legislatures, under this theory…”
In other words, this doctrine holds that the state legislatures, and the state legislatures alone, have the sole power to determine the winner of a presidential election in their state. According to Luttig, in 2000 in the Bush v Gore case one presently sitting (in)Justice, Clarence Thomas (who else?) indicated acceptance of that theory. Today, just as the “brain dead” Republicans dominate elected representatives, they now dominate the Supreme Court. According to Luttig, one of the many Republican challenges to the 2020 election that reached the Supreme Court hinged on the independent state legislature doctrine. Luttig writes that the Court “deadlocked 4-4, because Justice Barrett was not sworn in until after those cases were briefed and ready for decision by the Court…. Trump and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote….
“The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be….
“Finally, they are furiously politicking to elect Trump supporters to the Senate and House, so they can overturn the election in Congress, as a last resort.
“Forewarned is to be forearmed.
“Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”
In this case, we cannot rule out that the state legislatures themselves could overturn election results and appoint Republican electors. Any challenges to the state legislatures’ decision would be brought to the Supreme Court. There, the Republican majority could well rule that they have no authority to overturn what the state legislatures have done due to the “independent state legislature” doctrine. In the past, this sort of view of what could happen would have been legitimately dismissed as hysteria. No longer.
One comment: It is ironic that the exact forces that defend the “independent state legislature” doctrine also base themselves on the (equally reactionary) doctrine of “original intent” of the framers of the Constitution. One of the main motives of the framers of the Constitution was to put the state legislatures on a leash. That was because those state legislatures were close to the will of the small farmers, who were using the state legislatures to get out of the debts they owed to the banks.
What would happen if the fascist-connected Republican Party is able to overturn the presidential election through one of these means – either through fake electors and a Republican controlled House overturning the actual results or through the Republican controlled Supreme Court doing the equivalent?
Biden still nourishes the fantastical hope that the Republicans will “return to their senses” and reestablish the the collaborative relationship with the Democrats that they had for many decades. That’s why he still refers to the Republicans as “my friends across the aisle”. He and his wing of the Democrats are unlikely to abandon that hope, even in the most extreme of circumstances.
However, such a crisis could actually open up a major fissure within the Democratic Party. A hint of that came a few weeks ago when CNN was covering first the latest maneuvers of the Republicans and immediately following that the mass protests against Netanyahu in Israel. It seems these protests have been led by Israel’s totally establishment Labour Party. The CNN commentator said that it might be necessary to do the same thing here in the US in 2024 (or ‘25). In other words, it cannot be ruled out that the “progressive” wing of the Democrats could encourage the nonprofits that are linked with them as well as the union leadership to actually bring millions out into the streets to protest such a legal coup. They would do everything in their power to keep in under their control and to limit its scope. Would they succeed”
Where it could go from there is anybody’s guess, but young people, conscious workers and those few socialists who are grounded in reality should start considering these possibilities and to think about how we could support such a movement while also trying to lead at least a wing of it in an independent direction, away from the control of the Democrats and their representatives.