Mark Your Calendar: The Interregnum Ends On December 8th-- We Should Know If America Is Still A Democracy Or Not On That Day

 

I hope you read yesterday's essay by Liam O'Mara, professor of the history of ideas and Riverside County congressional candidate about the intersection fascism and Trumpism. A few hours later, Politico Magazine published a similar essay by author (On Fascism: 12 Lessons from American History) Matthew MacWilliams, Trump Is an Authoritarian. So Are Millions of Americans. He talks about a topic I think of constantly: how so many of our fellow citizens are "predisposed to authoritarianism... [T]he single factor that predicted whether a Republican primary voter supported Trump over his rivals," he wrote, "was an inclination to authoritarianism." His research shows that something like 18% of Americans are "highly disposed to authoritarianism... When activated by fear, authoritarian-leaning Americans are predisposed to trade civil liberties for strongman solutions to secure law and order; and they are ready to strip civil liberties from those defined as the 'other'-- a far cry from the image of America as a country built on a shared commitment to liberty and democratic governance."

American authoritarians, compared to non-authoritarians, are more likely to agree that our country should be governed by a strong leader who doesn’t have to bother with Congress or elections. They are more likely to support limiting the freedom of the press and agree that the media is the enemy of the people rather than a valuable independent institution. They are also more likely to think the President should have the power to limit the voice and vote of opposition parties, while believing that those who disagree with them are a threat to our country-- a concerning trend as we head to the polls this year.

American authoritarians fear diversity. They are more likely to agree that increasing racial, religious, and ethnic diversity is a clear and present threat to national security. They are more fearful of people of other races, and agree with the statement that “sometimes other groups must be kept in their place.”

...[This] explains, in part, how President Trump can remain popular with his base despite any number of policies that would have been considered unconstitutional, anti-American and perhaps even criminal in the past by members of both parties. He has sent paramilitary forces from the Department of Homeland Security to quell nonviolent protests, looked the other way when a foreign power meddles in American elections, celebrated the wounding of a journalist by police as “a beautiful sight,” and spent an election year casting doubt on the very basis of our democracy, the electoral system, rather than working to protect it-- all without eroding his main base of support.

...Our nation’s egalitarian, democratic aspirations have always competed for supremacy with a darker tradition rooted in authority, obedience and the hegemonic enforcement of majoritarian interests and norms. But it has never confronted a challenge like this. Trumpism is McCarthyism on steroids, and its full expression menaces the stability of our democracy. A country where authoritarian ideals are ascendant, and remain ascendant, is no longer a democracy. It is on the road to fascism, or what some now call euphemistically illiberal democracy.

BUT... MacWilliams wanted to be clear about something-- the need to follow the money. He wrote that "our fellow Americans, including our authoritarian neighbors, are not the enemy. The enemies of democracy are self-interested men and women who exploit fear to secure and expand their power. Fear activates the reservoir of intolerance that resides across ideological and partisan divides. And it dupes some of us into demanding uniformity over diversity, denigrating our neighbors, and turning our back on the very motto inscribed on the Great Seal of our Republican in 1782: e pluribus unum... In November, we have a choice: freedom or fear. If we choose freedom, our work is not done. Once stirred and embraced as deeply as it has been over the last four years, authoritarianism will not simply dissipate with the results of an election. We need to take action personally, institutionally and socially to rebuild the guardrails of democracy that protect our Republic from careening off the road into the gutter."

Yesterday's must, must, must read essay was a pre-release of The Atlantic's November cover story, The Election That Could Break America, by Barton Gellman. The teaser: "If the vote is close, Donald Trump could easily throw the election into chaos and subvert the result. Who will stop him?"

Gellman wrote that "The coronavirus pandemic, a reckless incumbent, a deluge of mail-in ballots, a vandalized Postal Service, a resurgent effort to suppress votes, and a trainload of lawsuits are bearing down on the nation’s creaky electoral machinery... [S]tudents of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result. We have no fail-safe against that calamity. Thus the blinking red lights."

A lot of people, including Joe Biden, the Democratic Party nominee, have mis­conceived the nature of the threat. They frame it as a concern, unthinkable for presidents past, that Trump might refuse to vacate the Oval Office if he loses. They generally conclude, as Biden has, that in that event the proper authorities “will escort him from the White House with great dispatch.”

The worst case, however, is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that un­certainty to hold on to power.

Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand.

“We are not prepared for this at all,” Julian Zelizer, a Prince­ton professor of history and public affairs, told me. “We talk about it, some worry about it, and we imagine what it would be. But few people have actual answers to what happens if the machinery of democracy is used to prevent a legitimate resolution to the election.”

...The Interregnum comprises 79 days, carefully bounded by law. Among them are “the first Monday after the second Wednesday in December,” this year December 14, when the electors meet in all 50 states and the District of Columbia to cast their ballots for president; “the 3d day of January,” when the newly elected Congress is seated; and “the sixth day of January,” when the House and Senate meet jointly for a formal count of the electoral vote. In most modern elections these have been pro forma milestones, irrelevant to the outcome. This year, they may not be.

“Our Constitution does not secure the peaceful transition of power, but rather presupposes it,” the legal scholar Lawrence Douglas wrote in a recent book titled simply Will He Go? The Interregnum we are about to enter will be accompanied by what Douglas, who teaches at Amherst, calls a “perfect storm” of adverse conditions. We cannot turn away from that storm. On November 3 we sail toward its center mass. If we emerge without trauma, it will not be an unbreakable ship that has saved us.





Let us not hedge about one thing. Donald Trump may win or lose, but he will never concede. Not under any circumstance. Not during the Interregnum and not afterward. If compelled in the end to vacate his office, Trump will insist from exile, as long as he draws breath, that the contest was rigged.

Trump’s invincible commitment to this stance will be the most important fact about the coming Interregnum. It will deform the proceedings from beginning to end. We have not experienced anything like it before.

Maybe you hesitate. Is it a fact that if Trump loses, he will reject defeat, come what may? Do we know that? Technically, you feel obliged to point out, the proposition is framed in the future conditional, and prophecy is no man’s gift, and so forth. With all due respect, that is pettifoggery. We know this man. We cannot afford to pretend.

Trump’s behavior and declared intent leave no room to suppose that he will accept the public’s verdict if the vote is going against him. He lies prodigiously-- to manipulate events, to secure advantage, to dodge accountability, and to ward off injury to his pride. An election produces the perfect distillate of all those motives.

Pathology may exert the strongest influence on Trump’s choices during the Interregnum. Well-supported arguments, some of them in this magazine, have made the case that Trump fits the diagnostic criteria for psychopathy and narcissism. Either disorder, by its medical definition, would render him all but incapable of accepting defeat.

Conventional commentary has trouble facing this issue squarely. Journalists and opinion makers feel obliged to add disclaimers when asking “what if” Trump loses and refuses to concede. “The scenarios all seem far-fetched,” Politico wrote, quoting a source who compared them to science fiction. Former U.S. Attorney Barbara McQuade, writing in The Atlantic in February, could not bring herself to treat the risk as real: “That a president would defy the results of an election has long been unthinkable; it is now, if not an actual possibility, at the very least something Trump’s supporters joke about.”

But Trump’s supporters aren’t the only people who think extra­constitutional thoughts aloud. Trump has been asked directly, during both this campaign and the last, whether he will respect the election results. He left his options brazenly open. “What I’m saying is that I will tell you at the time. I’ll keep you in suspense. Okay?” he told moderator Chris Wallace in the third presidential debate of 2016. Wallace took another crack at him in an interview for Fox News this past July. “I have to see,” Trump said. “Look, you-- I have to see. No, I’m not going to just say yes. I’m not going to say no.”

How will he decide when the time comes? Trump has answered that, actually. At a rally in Delaware, Ohio, in the closing days of the 2016 campaign, he began his performance with a signal of breaking news. “Ladies and gentlemen, I want to make a major announcement today. I would like to promise and pledge to all of my voters and supporters, and to all the people of the United States, that I will totally accept the results of this great and historic presidential election.” He paused, then made three sharp thrusts of his forefinger to punctuate the next words: “If … I … win!” Only then did he stretch his lips in a simulacrum of a smile.

...All of which is to say that there is no version of the Interregnum in which Trump congratulates Biden on his victory. He has told us so. “The only way they can take this election away from us is if this is a rigged election,” Trump said at the Republican National Convention on August 24. Unless he wins a bona fide victory in the Electoral College, Trump’s refusal to concede-- his mere denial of defeat-- will have cascading effects.

...We have no precedent or procedure to end this election if Biden seems to carry the Electoral College but Trump refuses to concede. We will have to invent one.

Trump is, by some measures, a weak authoritarian. He has the mouth but not the muscle to work his will with assurance. Trump denounced Special Counsel Robert Mueller but couldn’t fire him. He accused his foes of treason but couldn’t jail them. He has bent the bureaucracy and flouted the law but not broken free altogether of their restraints.

A proper despot would not risk the inconvenience of losing an election. He would fix his victory in advance, avoiding the need to overturn an incorrect outcome. Trump cannot do that.

But he’s not powerless to skew the proceedings-- first on Election Day and then during the Interregnum. He could disrupt the vote count where it’s going badly, and if that does not work, try to bypass it altogether. On Election Day, Trump and his allies can begin by suppressing the Biden vote.

There is no truth to be found in dancing around this point, either: Trump does not want Black people to vote. (He said as much in 2017-- on Martin Luther King Day, no less-- to a voting-­rights group co-founded by King, according to a recording leaked to Politico.) He does not want young people or poor people to vote. He believes, with reason, that he is less likely to win reelection if turnout is high at the polls. This is not a “both sides” phenomenon. In present-day politics, we have one party that consistently seeks advantage in depriving the other party’s adherents of the right to vote.

Just under a year ago, Justin Clark gave a closed-door talk in Wisconsin to a select audience of Republican lawyers. He thought he was speaking privately, but someone had brought a recording device. He had a lot to say about Election Day operations, or “EDO.”

At the time, Clark was a senior lieutenant with Trump’s re­election campaign; in July, he was promoted to deputy campaign manager. “Wisconsin’s the state that is going to tip this one way or the other … So it makes EDO really, really, really important,” he said. He put the mission bluntly: “Traditionally it’s always been Republicans suppressing votes … [Democrats’] voters are all in one part of the state, so let’s start playing offense a little bit. And that’s what you’re going to see in 2020. That’s what’s going to be markedly different. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program, and we’re going to need all the help we can get.” (Clark later claimed that his remarks had been misconstrued, but his explanation made no sense in context.)

Of all the favorable signs for Trump’s Election Day operations, Clark explained, “first and foremost is the consent decree’s gone.” He was referring to a court order forbidding Republican operatives from using any of a long list of voter-purging and intimidation techniques. The expiration of that order was a “huge, huge, huge, huge deal,” Clark said.

His audience of lawyers knew what he meant. The 2020 presidential election will be the first in 40 years to take place without a federal judge requiring the Republican National Committee to seek approval in advance for any “ballot security” operations at the polls. In 2018, a federal judge allowed the consent decree to expire, ruling that the plaintiffs had no proof of recent violations by Republicans. The consent decree, by this logic, was not needed, because it worked.

The order had its origins in the New Jersey gubernatorial election of 1981. According to the district court’s opinion in Democratic National Committee v. Republican National Committee, the RNC allegedly tried to intimidate voters by hiring off-duty law-enforcement officers as members of a “National Ballot Security Task Force,” some of them armed and carrying two-way radios. According to the plaintiffs, they stopped and questioned voters in minority neighborhoods, blocked voters from entering the polls, forcibly restrained poll workers, challenged people’s eligibility to vote, warned of criminal charges for casting an illegal ballot, and generally did their best to frighten voters away from the polls. The power of these methods relied on well-founded fears among people of color about contact with police.

This year, with a judge no longer watching, the Republicans are recruiting 50,000 volunteers in 15 contested states to monitor polling places and challenge voters they deem suspicious-looking. Trump called in to Fox News on August 20 to tell Sean Hannity, “We’re going to have sheriffs and we’re going to have law enforcement and we’re going to have, hopefully, U.S. attorneys” to keep close watch on the polls. For the first time in decades, according to Clark, Republicans are free to combat voter fraud in “places that are run by Democrats.”

Voter fraud is a fictitious threat to the outcome of elections, a pretext that Republicans use to thwart or discard the ballots of likely opponents. An authoritative report by the Brennan Center for Justice, a nonpartisan think tank, calculated the rate of voter fraud in three elections at between 0.0003 percent and 0.0025 percent. Another investigation, from Justin Levitt at Loyola Law School, turned up 31 credible allegations of voter impersonation out of more than 1 billion votes cast in the United States from 2000 to 2014. Judges in voting-rights cases have made comparable findings of fact.

Nonetheless, Republicans and their allies have litigated scores of cases in the name of preventing fraud in this year’s election. State by state, they have sought-- with some success-- to purge voter rolls, tighten rules on provisional votes, uphold voter-­identification requirements, ban the use of ballot drop boxes, reduce eligibility to vote by mail, discard mail-in ballots with technical flaws, and outlaw the counting of ballots that are postmarked by Election Day but arrive afterward. The intent and effect is to throw away votes in large numbers.

These legal maneuvers are drawn from an old Republican playbook. What’s different during this cycle, aside from the ferocity of the efforts, is the focus on voting by mail. The president has mounted a relentless assault on postal balloting at the exact moment when the coronavirus pandemic is driving tens of millions of voters to embrace it.

This year’s presidential election will see voting by mail on a scale unlike any before—some states are anticipating a tenfold increase in postal balloting. A 50-state survey by the Washington Post found that 198 million eligible voters, or at least 84 percent, will have the option to vote by mail.

Trump has denounced mail-in voting often and urgently, airing fantastical nightmares. One day he tweeted, “mail-in voting will lead to massive fraud and abuse. it will also lead to the end of our great republican party. we can never let this tragedy befall our nation.” Another day he pointed to an imaginary-- and easily debunked-- scenario of forgery from abroad: “rigged 2020 election: millions of mail-in ballots will be printed by foreign countries, and others. it will be the scandal of our times!”

Me The People by Nancy Ohanian

By late summer Trump was declaiming against mail-in voting an average of nearly four times a day-- a pace he had reserved in the past for existential dangers such as impeachment and the Mueller investigation: “Very dangerous for our country.” “A catastrophe.” “The greatest rigged election in history.”

Summer also brought reports that the U.S. Postal Service, the government’s most popular agency, was besieged from within by Louis DeJoy, Trump’s new postmaster general and a major Republican donor. Service cuts, upper-management restructuring, and chaotic operational changes were producing long delays. At one sorting facility, the Los Angeles Times reported, “workers fell so far behind processing packages that by early August, gnats and rodents were swarming around containers of rotted fruit and meat, and baby chicks were dead inside their boxes.”

In the name of efficiency, the Postal Service began de­commissioning 10 percent of its mail-sorting machines. Then came word that the service would no longer treat ballots as first-class mail unless some states nearly tripled the postage they paid, from 20 to 55 cents an envelope. DeJoy denied any intent to slow down voting by mail, and the Postal Service withdrew the plan under fire from critics.

If there were doubts about where Trump stood on these changes, he resolved them at an August 12 news conference. Democrats were negotiating for a $25 billion increase in postal funding and an additional $3.6 billion in election assistance to states. “They don’t have the money to do the universal mail-in voting. So therefore, they can’t do it, I guess,” Trump said. “It’s very simple. How are they going to do it if they don’t have the money to do it?”

What are we to make of all this?

In part, Trump’s hostility to voting by mail is a reflection of his belief that more voting is bad for him in general. Democrats, he said on Fox & Friends at the end of March, want “levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”

Some Republicans see Trump’s vendetta as self-defeating. “It to me appears entirely irrational,” Jeff Timmer, a former executive director of the Michigan Republican Party, told me. “The Trump campaign and RNC and by fiat their state party organizations are engaging in suppressing their own voter turnout,” including Republican seniors who have voted by mail for years.

But Trump’s crusade against voting by mail is a strategically sound expression of his plan for the Interregnum. The president is not actually trying to prevent mail-in balloting altogether, which he has no means to do. He is discrediting the practice and starving it of resources, signaling his supporters to vote in person, and preparing the ground for post–Election Night plans to contest the results. It is the strategy of a man who expects to be outvoted and means to hobble the count.

Voting by mail does not favor either party “during normal times,” according to a team of researchers at Stanford, but that phrase does a lot of work. Their findings, which were published in June, did not take into account a president whose words alone could produce a partisan skew. Trump’s systematic predictions of fraud appear to have had a powerful effect on Republican voting intentions. In Georgia, for example, a Monmouth University poll in late July found that 60 percent of Democrats but only 28 percent of Republicans were likely to vote by mail. In the battleground states of Pennsylvania and North Carolina, hundreds of thousands more Democrats than Republicans have requested mail-in ballots.

Trump, in other words, has created a proxy to distinguish friend from foe. Republican lawyers around the country will find this useful when litigating the count. Playing by the numbers, they can treat ballots cast by mail as hostile, just as they do ballots cast in person by urban and college-town voters. Those are the ballots they will contest.

The battle space of the Interregnum, if trends hold true, will be shaped by a phenomenon known as the “blue shift.”

Edward Foley, an Ohio State professor of constitutional law and a specialist in election law, pioneered research on the blue shift. He found a previously un­remarked-upon pattern in the overtime count—the canvass after Election Night that tallies late-reporting precincts, un­processed absentee votes, and provisional ballots cast by voters whose eligibility needed to be confirmed. For most of American history, the overtime count produced no predictably partisan effect. In any given election year, some states shifted red in the canvass after Election Day and some shifted blue, but the shifts were seldom large enough to matter.

Two things began to change about 20 years ago. The overtime count got bigger, and it trended more and more blue. In an updated paper this year, Foley and his co-author, Charles Stewart III of MIT, said they could not fully explain why the shift favors Democrats. (Some factors: Urban returns take longer to count, and most provisional ballots are cast by young, low-income, or mobile voters, who lean blue.) During overtime in 2012, Barack Obama strengthened his winning margins in swing states like Florida (with a net increase of 27,281 votes), Michigan (60,695), Ohio (65,459), and Pennsylvania (26,146). Obama would have won the presidency anyway, but shifts of that magnitude could have changed the outcomes of many a closer contest. Hillary Clinton picked up tens of thousands of overtime votes in 2016, but not enough to save her.

The blue shift has yet to decide a presidential election, but it upended the Arizona Senate race in 2018. Republican Martha McSally seemed to have victory in her grasp with a lead of 15,403 votes the day after Election Day. Canvassing in the days that followed swept the Democrat, Kyrsten Sinema, into the Senate with “a gigantic overtime gain of 71,303 votes,” Foley wrote.

It was Florida, however, that seized Trump’s attention that year. On Election Night, Republicans were leading in tight contests for governor and U.S. senator. As the blue shift took effect, Ron DeSantis watched his lead shrink by 18,416 votes in the governor’s race. Rick Scott’s Senate margin fell by 20,231. By early morning on November 12, six days after Election Day, Trump had seen enough. “The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged,” he tweeted, baselessly. “An honest vote count is no longer possible-- ballots massively infected. Must go with Election Night!”

Trump was panicked enough by the blue shift in somebody else’s election to fabricate allegations of fraud. In this election, when his own name is on the ballot, the blue shift could be the largest ever observed. Mail-in votes require more time to count even in a normal year, and this year there will be tens of millions more of them than in any election before. Many states forbid the processing of early-arriving mail ballots before Election Day; some allow late-arriving ballots to be counted.

Trump’s instinct as a spectator in 2018-- to stop the count-- looks more like strategy this year. “There are results that come in Election Night,” a legal adviser to Trump’s national campaign, who would not agree to be quoted by name, told me. “There’s an expectation in the country that there will be winners and losers called. If the Election Night results get changed because of the ballots counted after Election Day, you have the basic ingredients for a shitstorm.”

There is no “if” about it, I said. The count is bound to change. “Yeah,” the adviser agreed, and canvassing will produce more votes for Biden than for Trump. Democrats will insist on dragging out the canvass for as long as it takes to count every vote. The resulting conflict, the adviser said, will be on their heads.

“They are asking for it,” he said. “They’re trying to maximize their electoral turnout, and they think there are no downsides to that.” He added, “There will be a count on Election Night, that count will shift over time, and the results when the final count is given will be challenged as being inaccurate, fraudulent-- pick your word.”

The worst case for an orderly count is also considered by some election modelers the likeliest: that Trump will jump ahead on Election Night, based on in-person returns, but his lead will slowly give way to a Biden victory as mail-in votes are tabulated. Josh Mendelsohn, the CEO of the Democratic data-modeling firm Hawkfish, calls this scenario “the red mirage.” The turbulence of that interval, fed by street protests, social media, and Trump’s desperate struggles to lock in his lead, can only be imagined. “Any scenario that you come up with will not be as weird as the reality of it,” the Trump legal adviser said.

Election lawyers speak of a “margin of litigation” in close races. The tighter the count in early reports, and the more votes remaining to count, the greater the incentive to fight in court. If there were such a thing as an Election Administrator’s Prayer, as some of them say only half in jest, it would go, “Lord, let there be a landslide.”

Could a landslide spare us conflict in the Interregnum? In theory, yes. But the odds are not promising.

It is hard to imagine a Trump lead so immense on Election Night that it places him out of Biden’s reach. Unless the swing states manage to count most of their mail-in ballots that night, which will be all but impossible for some of them, the expectation of a blue shift will keep Biden fighting on. A really big Biden lead on Election Night, on the other hand, could leave Trump without plausible hope of catching up. If this happens, we may see it first in Florida. But this scenario is awfully optimistic for Biden, considering the GOP advantage among in-person voters, and in any case Trump will not concede defeat. This early in the Interregnum, he will have practical options to keep the contest alive.

Both parties are bracing for a torrent of emergency motions in state and federal courts. They have already been skirmishing from courthouse to courthouse all year in more than 40 states, and Election Day will begin a culminating phase of legal combat.

Mail-in ballots will have plenty of flaws for the Trump lawyers to seize upon. Voting by mail is more complicated than voting in person, and technical errors are common­place at each step. If voters supply a new address, or if they write a different version of their name (for example, by shortening Benjamin to Ben), or if their signature has changed over the years, or if they print their name on the signature line, or if they fail to seal the ballot inside an inner security envelope, their votes may not count. With in-person voting, a poll worker in the precinct can resolve small errors like these, for instance by directing a voter to the correct signature line, but people voting by mail may have no opportunity to address them.





During the primaries this spring, Republican lawyers did dry runs for the November vote at county election offices around the country. An internal memo prepared by an attorney named J. Matthew Wolfe for the Pennsylvania Republican Party in June reported on one such exercise. Wolfe, along with another Republican lawyer and a member of the Trump campaign, watched closely but did not intervene as election commissioners in Philadelphia canvassed mail-in and provisional votes. Wolfe cataloged imperfections, taking note of objections that his party could have raised.

There were missing signatures and partial signatures and signatures placed in the wrong spot. There were names on the inner security envelopes, which are supposed to be unmarked, and ballots without security envelopes at all. Some envelopes arrived “without a postmark or with an illegible postmark,” Wolfe wrote. (Watch for postmarks to become the hanging chads of 2020.) Some voters wrote their birthdate where a signature date belonged, and others put down “an impossible date, like a date after the primary election.”

Some of the commissioners’ decisions “were clear violations of the direction in and language of the election code,” Wolfe wrote. He recommended that “someone connected with the party review each application and each mail ballot envelope” in November. That is exactly the plan.

Legal teams on both sides are planning for simultaneous litigation, on the scale of Florida during the 2000 election, in multiple battleground states. “My money would be on Texas, Georgia, and Florida” to be trouble spots, Myrna Pérez, the director of voting rights and elections at the Brennan Center, told me.

There are endless happenstances in any election for lawyers to exploit. In Montgomery County, Pennsylvania, not far from Wolfe’s Philadelphia experiment, the county Republican committee gathered surveillance-style photographs of purportedly suspicious goings-on at a ballot drop box during the primary. In one sequence, a county employee is described as placing “unsecured ballots” in the trunk of a car. In another, a security guard is said to be “disconnecting the generator which supplies power to the security cameras.” The photos could mean anything-- ­it’s impossible to tell, out of context-- but they are exactly the kind of ersatz evidence that is sure to go viral in the early days of the Interregnum.

The electoral combat will not confine itself to the courtroom. Local election adjudicators can expect to be named and doxed and pilloried as agents of George Soros or antifa. Aggressive crowds of self-proclaimed ballot guardians will be spoiling to reenact the “Brooks Brothers riot” of the Bush v. Gore Florida recount, when demonstrators paid by the Bush campaign staged a violent protest that physically prevented canvassers from completing a recount in Miami-Dade County.

Things like this have already happened, albeit on a smaller scale than we can expect in November. With Trump we must also ask: What might a ruthless incumbent do that has never been tried before?

Suppose that caravans of Trump supporters, adorned in Second Amendment accessories, converge on big-city polling places on Election Day. They have come, they say, to investigate reports on social media of voter fraud. Counter­protesters arrive, fistfights break out, shots are fired, and voters flee or cannot reach the polls.

Then suppose the president declares an emergency. Federal personnel in battle dress, staged nearby in advance, move in to restore law and order and secure the balloting. Amid ongoing clashes, they stay to monitor the canvass. They close the streets that lead to the polls. They take custody of uncounted ballots in order to preserve evidence of fraud.

“The president can’t cancel the election, but what if he says, ‘We’re in an emergency, and we’re shutting down this area for a period of time because of the violence taking place’?” says Norm Ornstein of the American Enterprise Institute. If you are in Trump’s camp and heedless of boundaries, he said, “what I would expect is you’re not going to do one or two of these things-- you’ll do as many as you can.”

There are variations of the nightmare. The venues of intervention could be post offices. The predicate could be a putative intelligence report on forged ballots sent from China.

This is speculation, of course. But none of these scenarios is far removed from things the president has already done or threatened to do. Trump dispatched the National Guard to Washington, D.C., and sent Department of Homeland Security forces to Portland, Oregon, and Seattle during summertime protests for racial justice, on the slender pretext of protecting federal buildings. He said he might invoke the Insurrection Act of 1807 and “deploy the United States military” to “Democrat-run cities” in order to protect “life and property.” The federal government has little basis to intercede during elections, which are largely governed by state law and administered by about 10,500 local jurisdictions, but no one familiar with Attorney General Bill Barr’s view of presidential power should doubt that he can find authority for Trump.

Prohibited Acts by Nancy Ohanian

With every day that passes after November 3, the president and his allies can hammer home the message that the legitimate tabulation is over and the Democrats are refusing to honor the results. Trump has been flogging this horse already for months. In July he tweeted, “Must know Election results on the night of the Election, not days, months, or even years later!”

Does it matter what Trump says? It is tempting to liken a vote count to the score at a sporting event. The losing coach can belly­ache all he likes, but when the umpire makes the call, the game is over. An important thing to know about the Interregnum is that there is no umpire-- no singular authority who can decide the contest and lay it to rest. There is a series of lesser officiants, each confined in jurisdiction and tangled in opaque rules.

Trump’s strategy for this phase of the Interregnum will be a play for time as much as a concerted attempt to squelch the count and disqualify Biden votes. The courts may eventually weigh in. But by then, the forum of decision may already have moved elsewhere.

The Interregnum allots 35 days for the count and its attendant lawsuits to be resolved. On the 36th day, December 8, an important deadline arrives.

At this stage, the actual tabulation of the vote becomes less salient to the outcome. That sounds as though it can’t be right, but it is: The combatants, especially Trump, will now shift their attention to the appointment of presidential electors.

December 8 is known as the “safe harbor” deadline for appointing the 538 men and women who make up the Electoral College. The electors do not meet until six days later, December 14, but each state must appoint them by the safe-harbor date to guarantee that Congress will accept their credentials. The controlling statute says that if “any controversy or contest” remains after that, then Congress will decide which electors, if any, may cast the state’s ballots for president.

We are accustomed to choosing electors by popular vote, but nothing in the Constitution says it has to be that way. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the late 19th century, every state has ceded the decision to its voters. Even so, the Supreme Court affirmed in Bush v. Gore that a state “can take back the power to appoint electors.” How and when a state might do so has not been tested for well over a century.

Trump may test this. According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.

To a modern democratic sensibility, discarding the popular vote for partisan gain looks uncomfortably like a coup, whatever license may be found for it in law. Would Republicans find that position disturbing enough to resist? Would they cede the election before resorting to such a ploy? Trump’s base would exact a high price for that betrayal, and by this point party officials would be invested in a narrative of fraud.

The Trump-campaign legal adviser I spoke with told me the push to appoint electors would be framed in terms of protecting the people’s will. Once committed to the position that the overtime count has been rigged, the adviser said, state lawmakers will want to judge for themselves what the voters intended.

“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’ ” the adviser said. Democrats, he added, have exposed themselves to this stratagem by creating the conditions for a lengthy overtime.

“If you have this notion,” the adviser said, “that ballots can come in for I don’t know how many days-- in some states a week, 10 days-- then that onslaught of ballots just gets pushed back and pushed back and pushed back. So pick your poison. Is it worse to have electors named by legislators or to have votes received by Election Day?”

When The Atlantic asked the Trump campaign about plans to circumvent the vote and appoint loyal electors, and about other strategies discussed in the article, the deputy national press secretary did not directly address the questions. “It’s outrageous that President Trump and his team are being villainized for upholding the rule of law and transparently fighting for a free and fair election,” Thea McDonald said in an email. “The mainstream media are giving the Democrats a free pass for their attempts to completely uproot the system and throw our election into chaos.” Trump is fighting for a trustworthy election, she wrote, “and any argument otherwise is a conspiracy theory intended to muddy the waters.”

In Pennsylvania, three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign.

“I’ve mentioned it to them, and I hope they’re thinking about it too,” Lawrence Tabas, the Pennsylvania Republican Party’s chairman, told me. “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution.” He added that everyone’s preference is to get a swift and accurate count. “If the process, though, is flawed, and has significant flaws, our public may lose faith and confidence” in the election’s integrity.

Jake Corman, the state’s Senate majority leader, preferred to change the subject, emphasizing that he hoped a clean vote count would produce a final tally on Election Night. “The longer it goes on, the more opinions and the more theories and the more conspiracies [are] created,” he told me. If controversy persists as the safe-harbor date nears, he allowed, the legislature will have no choice but to appoint electors. “We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law.”

Republicans control both legislative chambers in the six most closely contested battleground states. Of those, Arizona and Florida have Republican governors, too. In Michigan, North Carolina, Pennsylvania, and Wisconsin, the governors are Democrats.

Foley, the Ohio State election scholar, has mapped the ripple effects if Republican legislators were to appoint Trump electors in defiance of the vote in states like Pennsylvania and Michigan. The Democratic governors would respond by certifying the official count, a routine exercise of their authority, and they would argue that legislators could not lawfully choose different electors after the vote had taken place. Their “certificates of ascertainment,” dispatched to the National Archives, would say that their states had appointed electors committed to Biden. Each competing set of electors would have the imprimatur of one branch of state government.

In Arizona, Secretary of State Katie Hobbs, who oversees elections, is a Democrat. She could assert her own power to certify the voting results and forward a slate of Biden electors. Even in Florida, which has unified Republican rule, electors pledged to Biden could meet and certify their own votes in hope of triggering a “controversy or contest” that would leave their state’s outcome to Congress. Much the same thing almost happened during the Florida recount battle of 2000. Republican Governor Jeb Bush certified electors for his brother, George W. Bush, on November 26 of that year, while litigation of the recount was still under way. Gore’s chief lawyer, Ronald Klain, responded by booking a room in the old Florida capitol building for Democratic electors to cast rival ballots for Gore. Only Gore’s concession, five days before the Electoral College vote, mooted that plan.

In any of these scenarios, the Electoral College would convene on December 14 without a consensus on who had legitimate claims to cast the deciding votes.

Rival slates of electors could hold mirror-image meetings in Harris­burg, Lansing, Tallahassee, or Phoenix, casting the same electoral votes on opposite sides. Each slate would transmit its ballots, as the Constitution provides, “to the seat of the government of the United States, directed to the President of the Senate.” The next move would belong to Vice President Mike Pence.

This would be a genuine constitutional crisis, the first but not the last of the Interregnum. “Then we get thrown into a world where anything could happen,” Norm Ornstein says.

Two men are claiming the presidency. The next occasion to settle the matter is more than three weeks away.

January 6 comes just after the new Congress is sworn in. Control of the Senate will be crucial to the presidency now.

"And I Won't Lose One Voter" by Nancy Ohanian

Pence, as president of the Senate, would hold in his hands two conflicting electoral certificates from each of several swing states. The Twelfth Amendment says only this about what happens next: “The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.”

Note the passive voice. Who does the counting? Which certificates are counted?

The Trump team would take the position that the constitutional language leaves those questions to the vice president. This means that Pence has the unilateral power to announce his own reelection, and a second term for Trump. Democrats and legal scholars would denounce the self-dealing and point out that Congress filled the gaps in the Twelfth Amendment with the Electoral Count Act, which provides instructions for how to resolve this kind of dispute. The trouble with the instructions is that they are widely considered, in Foley’s words, to be “convoluted and impenetrable,” “confusing and ugly,” and “one of the strangest pieces of statutory language ever enacted by Congress.”

If the Interregnum is a contest in search of an umpire, it now has 535 of them, and a rule book that no one is sure how to read. The presiding officer is one of the players on the field.

Foley has produced a 25,000-word study in the Loyola University Chicago Law Journal that maps out the paths the ensuing fight could take if only one state’s electoral votes are in play.

If Democrats win back the Senate and hold the House, then all roads laid out in the Electoral Count Act lead eventually to a Biden presidency. The reverse applies if Republicans hold the Senate and unexpectedly win back the House. But if Congress remains split, there are conditions in which no decisive outcome is possible-- no result that has clear force of law. Each party could cite a plausible reading of the rules in which its candidate has won. There is no tie-breaking vote.

How can it be that Congress slips into unbreakable deadlock? The law is a labyrinth in these parts, too intricate to map in a magazine article, but I can sketch one path.

Suppose Pennsylvania alone sends rival slates of electors, and their 20 votes will decide the presidency.

One reading of the Electoral Count Act says that Congress must recognize the electors certified by the governor, who is a Democrat, unless the House and Senate agree otherwise. The House will not agree otherwise, and so Biden wins Pennsylvania and the White House. But Pence pounds his gavel and rules against this reading of the law, instead favoring another, which holds that Congress must discard both contested slates of electors. The garbled statute can plausibly be read either way.

With Pennsylvania’s electors disqualified, 518 electoral votes remain. If Biden holds a narrow lead among them, he again claims the presidency, because he has “the greatest number of votes,” as the Twelfth Amendment prescribes. But Republicans point out that the same amendment requires “a majority of the whole number of electors.” The whole number of electors, Pence rules, is 538, and Biden is short of the required 270.

On this argument, no one has attained the presidency, and the decision is thrown to the House, with one vote per state. If the current partisan balance holds, 26 out of 50 votes will be for Trump.

Before Pence can move on from Pennsylvania to Rhode Island, which is next on the alphabetical list as Congress counts the vote, House Speaker Nancy Pelosi expels all senators from the floor of her chamber. Now Pence is prevented from completing the count “in the presence of” the House, as the Constitution requires. Pelosi announces plans to stall indefinitely. If the count is still incomplete on Inauguration Day, the speaker herself will become acting president.

Pelosi prepares to be sworn in on January 20 unless Pence reverses his ruling and accepts that Biden won. Pence does not budge. He reconvenes the Senate in another venue, with House Republicans squeezing in, and purports to complete the count, making Trump the president-elect. Three people now have supportable claims to the Oval Office.

There are other paths in the labyrinth. Many lead to dead ends.

This is the next constitutional crisis, graver than the one three weeks before, because the law and the Constitution provide for no other authority to consult. The Supreme Court may yet intervene, but it may also shy away from another traumatizing encounter with a fundamentally political question.

Sixty-four days have passed since the election. Stalemate reigns. Two weeks remain until Inauguration Day.

Foley, who foresaw this impasse, knows of no solution. He cannot tell you how we avoid it under current law, or how it ends. It is not so much, at this point, a question of law. It is a question of power. Trump has possession of the White House. How far will he push boundaries to keep it, and who will push back? It is the same question the president has posed since the day he took office.

I hoped to gain some insight from a series of exercises conducted this summer by a group of former elected officials, academics, political strategists, and lawyers. In four days of simulations, the Transition Integrity Project modeled the election and its aftermath in an effort to find pivot points where things could fall apart.

They found plenty. Some of the scenarios included dueling slates of electors of the kind I have described. In one version it was the Democratic governor of Michigan who first resorted to appointing electors, after Trump ordered the National Guard to halt the vote count and a Trump-friendly guardsman destroyed mail-in ballots. John Podesta, Hillary Clinton’s campaign chair in 2016, led a Biden team in another scenario that was prepared to follow Trump to the edge of civil war, encouraging three blue states to threaten secession. Norm-breaking begat norm-breaking. (Clinton herself, in an August interview for Showtime’s The Circus, caught the same spirit. “Joe Biden should not concede under any circumstances,” she said.)

A great deal has been written about the proceedings, including a firsthand account from my colleague David Frum. But the coverage had a puzzling gap. None of the stories fully explained how the contest ended. I wanted to know who took the oath of office.

I called Rosa Brooks, a Georgetown professor who co-founded the project. Unnervingly, she had no answers for me. She did not know how the story turned out. In half of the simulations, the participants did not make it as far as Inauguration Day.

“We got to points in the scenarios where there was a constitutional impasse, no clear means of resolution in sight, street-level violence,” she said. “I think in one of them we had Trump invoking the Insurrection Act and we had troops in the streets... Five hours had gone by and we sort of said, ‘Okay, we’re done.’ ” She added: “Once things were clearly off the rails, there was no particular benefit to seeing exactly how far off they would go.”

“Our goal in doing this was to try to identify intervention moments, to identify moments where we could then look back and say, ‘What would have changed this? What would have kept it from getting this bad?’ ” Brooks said. The project didn’t make much progress there. No lessons were learned about how to restrain a lawless president once a conflict was under way, no alternative moves devised to stave off disaster. “I suppose you could say we were in terra incognita: no one could predict what would happen anymore,” Brooks told me in a follow-up email.

The political system may no longer be strong enough to preserve its integrity. It’s a mistake to take for granted that election boards and state legislatures and Congress are capable of drawing lines that ensure a legitimate vote and an orderly transfer of power. We may have to find a way to draw those lines ourselves.

There are reforms to consider some other day, when an election is not upon us. Small ones, like clearing up the murky parts of the Electoral Count Act. Big ones, like doing away with the Electoral College. Obvious ones, like appropriating money to help cash-starved election authorities upgrade their operations in order to speed up and secure the count on Election Day.

Right now, the best we can do is an ad hoc defense of democracy. Begin by rejecting the temptation to think that this election will carry on as elections usually do. Something far out of the norm is likely to happen. Probably more than one thing. Expecting other­wise will dull our reflexes. It will lull us into spurious hope that Trump is tractable to forces that constrain normal incumbents.

If you are a voter, think about voting in person after all. More than half a million postal votes were rejected in this year’s primaries, even without Trump trying to suppress them. If you are at relatively low risk for COVID-19, volunteer to work at the polls. If you know people who are open to reason, spread word that it is normal for the results to keep changing after Election Night. If you manage news coverage, anticipate extra­constitutional measures, and position reporters and crews to respond to them. If you are an election administrator, plan for contingencies you never had to imagine before. If you are a mayor, consider how to deploy your police to ward off interlopers with bad intent. If you are a law-enforcement officer, protect the freedom to vote. If you are a legislator, choose not to participate in chicanery. If you are a judge on the bench in a battleground state, refresh your acquaintance with election case law. If you have a place in the military chain of command, remember your duty to turn aside unlawful orders. If you are a civil servant, know that your country needs you more than ever to do the right thing when you’re asked to do otherwise.

Take agency. An election cannot be stolen unless the American people, at some level, acquiesce. One thing Brooks has been thinking about since her exercise came to an end is the power of peaceful protest on a grand scale. “We had players on both sides attempting to mobilize their supporters to turn out in large numbers, and we didn’t really have a good mechanism for deciding, did that make a difference? What kind of difference did that make?” she said. “It left some with some big questions about what if you had Orange Revolution–style mass protest sustained over weeks. What effects would that have?”

Only once, in 1877, has the Interregnum brought the country to the brink of true collapse. We will find no model in that episode for us now.

Four states sent rival slates of electors to Congress in the 1876 presidential race between Democrat Samuel Tilden and Republican Rutherford B. Hayes. When a special tribunal blessed the electors for Hayes, Democrats began parliamentary maneuvers to obstruct the electoral count in Congress. Their plan was to run out the clock all the way to Inauguration Day, when the Republican incumbent, Ulysses S. Grant, would have to step down.

Not until two days before Grant’s term expired did Tilden give in. His concession was based on a repugnant deal for the withdrawal of federal troops from the South, where they were protecting the rights of emancipated Black people. But that was not Tilden’s only inducement.

The threat of military force was in the air. Grant let it be known that he was prepared to declare martial law in New York, where rumor had it that Tilden planned to be sworn in, and to back the inauguration of Hayes with uniformed troops.

That is an unsettling precedent for 2021. If our political institutions fail to produce a legitimate president, and if Trump maintains the stalemate into the new year, the chaos candidate and the commander in chief will be one and the same.

Just As The Clash Warned, The U.K. Is Headed Straight To Hell

 

Trump is still telling his simpleminded supporters that-- even as the U.S. hurtles towards a quarter million COVID-deaths-- there's really no problem at all. "It affects elderly people, elderly people with heart problems and other problems. That’s what it really affects," he said yesterday. And on Fox a day before, he said "We’ve done a phenomenal job, not just a good job, a phenomenal job" and said he deserves an A+ for his efforts. No doubt the New Axis is delighted-- plus Duterte and Bolsinaro-- but most of the world is astounded, if not horrified. Yesterday, Fiona Hill, Trump's former top Russia adviser said that the U.S. is increasingly seen as "an object of pity including by our allies, because they are so shocked by what's happening internally, how we're eating ourselves alive with our divisions." Putin sure made a wise investment when he spent a few million dollars to elect Trump in 2016.

Europe is starting the second wave now and number are spiking everywhere. None of the countries are doing badly compared to Trumpland but... no one compares themselves to the hellhole Trump has turned the U.S. into. There are now 21,446 cases per million Americans. The worst-hit European countries-- Spain (14,591 per million residents), Sweden (8,875 per million residents) and Belgium (8,912 per million residents)-- don't come anywhere close. But Europeans aren't thinking about how badly Trump is doing as a national leader; they're thinking about their own neighbors getting sick and dying. Reports from Europe so far this week have been terrible.

The U.K. has the 4th most cases after Russia, Spain and France-- 403,551, after 13,193 new cases were reported this week (Sunday, Monday and Tuesday). That's 5,937 cases per million Brits, not as bad Spain, Belgium, Sweden France, Russia or France, but worse than Holland, Italy, Denmark or Germany. The real problem for the U.K. though is that they have the most COVID deaths in Europe-- 41,825 as of yesterday. Only Belgium and Spain have more deaths per million residents.





Yesterday Jill Lawless and Danica Kirka reporting from London for the Associated Press, wrote that British prime minister Boris Johnson seems to have woken up to the catastrophic road his country has been headed down. He warned Brits that they shouldn't expect to return to a normal social or work life for at least six months and ordered new (half-asses and woefully ineffective) restrictions, likely to prove deadly in their cravenness. Example: he announced he will require pubs, restaurants and other entertainment venues in England to close down between 10 pm and 5 am and urging people to work from home where possible. Is that because you can't catch the virus before 10 pm or after 5 am? Johnson is another sickening, cowardly politician, petrified to anger voters.

Johnson had encouraged workers just weeks ago to go back into offices to keep city centers from becoming ghost towns, and he expressed hope that society could return to normal by Christmas. In a stark change of tone, he said Tuesday that “for the time being, this virus is a fact of our lives.”

“We will spare no effort in developing vaccines, treatments and new forms of mass testing, but unless we palpably make progress, we should assume that the restrictions I have announced will remain in place for perhaps six months,” Johnson told lawmakers in the House of Commons.

The announcement came a day after the government’s top scientific and medical advisers said new coronavirus infections were doubling every seven days and could rise to 49,000 a day by mid-October if nothing was done to stem the tide.

On Monday, the government reported 4,300 new confirmed cases, the highest number since May and four times the number seen a month ago. Chief medical officers have raised the U.K.’s virus alert level from three to four, the second-highest rung, saying cases of COVID-19 were rising “rapidly and probably exponentially.”

The new restrictions require face masks to be worn in taxis as well as on public transport. The size of some gatherings is being curtailed, with weddings limited to 15 people instead of 30, and a plan to bring spectators back into sports stadiums starting in October is being put on hold.

Johnson did not reduce the number of people who can gather indoors or out, which remains at six.

The British government is also increasing the penalties for breaking the rules. People who breach orders to quarantine face fines of up to 10,000 pounds ($12,800) and businesses that breach “COVID-secure” rules can be shut down.

The measures apply only to England. Other parts of the U.K. introduced similar curbs, but some went further in limiting social interactions.

Scottish First Minister Nicola Sturgeon, who has often struck a more cautious note than Johnson during the pandemic, said that with a few exceptions, people would be barred from visiting others’ homes, and car-sharing would be discouraged.

Sturgeon said the measure would be reviewed every three weeks but “may be needed for longer than that.” She said she hoped it would be less than six months.

The new restrictions outlined by Johnson are less stringent than the nationwide lockdown imposed in March, which confined most of the population and closed most businesses. Britain eased its lockdown starting in June as cases began to fall, but that trend has now been reversed.

The prime minister said if the new curbs did not slow the outbreak, “we reserve the right to deploy greater firepower, with significantly greater restrictions.”

Still, some lawmakers from Johnson’s governing Conservative Party are uneasy about tightening restrictions on business and daily life, citing the impact on Britain’s already-reeling economy.

To persuade people to stay home if they test positive for the virus, the government announced it would pay low-income workers 500 pounds ($639) if they are told to self-isolate for 14 days.

Businesses, especially in the areas of hospitality, sports and the arts, said they urgently needed support, too.

Kate Nicholls, chief executive of trade body UKHospitality, said before the announcement that the restrictions would be “another crushing blow” for many businesses.

But most epidemiologists believe more restrictions are again necessary and even worry that the government’s plans may not go far enough.

Polls suggest a majority of people in Britain support lockdown measures to contain the virus. But they also show that trust in the Conservative government’s handling of the pandemic has declined after troubles with testing, mixed messages on reopening and the U.K.’s high death toll.

Meanwhile anti-mask right-wingers have been rioting in London this week. Like so many Trump fans, they claim COVID is a hoax and that the vaccine (which doesn't exist yet) will be more harmful than the coronavirus itself and that fighting the pandemic is tyranny and an affront to their liberty. See? And you thought people like that only lived in Wyoming, the Dakotas and on Fox News? YouTube is filled with videos being disseminated by Russian propaganda outlets seeking to cause disruption and to shatter social cohesion.

Branded by Nancy Ohanian

Blue Lives Matter?

Do you ever get a call soliciting money for some kind of police benevolent association? I do-- frequently. I always hang up. It's different from the way I treat other phone solicitors who slip through my security net. For the others I either speak in a really low voice so they have to press their ear against the phone to hear me-- and then blow a high-decibel coast guard whistle into the phone-- or I let loose with the most incredibly ugly stream of curses imaginable, so ugly that I unsalted and frighten myself. But when it's an operator-- inevitably an authoritative-sounding male-- identifying himself as from a police organization, I hold off on the whistle and curses. I just hang up. That's because I fear retribution.

No one from my high school academic classes became a cop. That's because in my high school, they divided kids up into "honor" classes, regular classes and "modified" classes. I was in the honor classes. The future cops weren't. And there were future cops at the school. They were in my gym classes and my home room classes and in my shop class. I didn't know for sure they would be cops then; there was always the chance they could be criminals. The future cops and the future mobsters were the same group of guys. At some point, they would go one way or the other-- although a congressman who eventually represented my neighborhood (decades after I had left) never made the choice... He was both a federal law enforcement agent and a mobster at the same time. That would be Michael Grimm (R-NY), who severed a tap on the wrist sentence for cheating on his taxes as part of a deal that didn't get into a long list of criminal activities, including at least one murder, in return for strict silence on his part. Omertà.

As the president of a large company in a small city, I was tight with the local police-- more than cordial relations. When my house was robbed once, I went to these cops from the city where I worked, not the city where my house was. They solved it-- fast-- and had all my stolen stuff back to me and the perps behind bars. More than cordial. Decades apart, I had affairs with two cops. What they had in common was chilling. I'm sure there are good cops like... Harry Bosch.





But not too many. More of them, I suspect, are like the cops/robbers kids in the modified classes, getting off on the power of fear, dominance and terror. This week New York Magazine published a piece by Zak Cheney-Rice worth reading, In L.A. County, Gangs Wear Badges that might help you to grok what the Black Lives Matter movement is fighting. "Much of the recent debate," wrote Cheney-Rice, "about policing’s excesses involves a clash of two viewpoints: one claiming that there is something structurally and culturally wrong with American law enforcement that encourages immoral behavior, and another that attributes their worst conduct to 'bad apples,' rogue individuals whose actions speak for them alone and do not indict their fellow officers or their profession as a whole. The Los Angeles County Sheriff’s Department provides a helpful literalization of the former point: an entire law-enforcement entity whose members regularly join criminal gangs, earn clout by harassing, assaulting, and killing county residents, and retaliate against their colleagues who dare to oppose them." Oh great!

Sworn testimony made in June by a whistleblower, Deputy Art Gonzalez, details a pattern of such behavior inside the Compton sheriff’s station, which exists as part of the Southern California city’s partnership with the county sheriff to provide local law enforcement. Gonzalez claimed that Deputy Miguel Vega, who shot 18-year-old Andres Guardado during a June incident that sparked protests, was a prospective member of the Executioners, a dozen or so deputies who allegedly operate as a gang-- setting illegal arrest quotas, threatening work slowdowns if they don’t get their desired shift assignments, assaulting their fellow deputies, and holding parties to celebrate when their members shoot or kill someone in the line of duty, the Los Angeles Times reports. The existence of the Executioners is “common knowledge” within the department, Gonzalez said, according to Spectrum News 1, which obtained a transcript of his testimony this week. Decades of harassment and violence at the hands of the Compton office-- including one 2019 incident where the city’s mayor, Aja Brown, claims to have been ordered out of her car by more than half a dozen deputies and searched for drugs that she did not possess-- have led the city to propose severing ties with the department altogether, a proposal that the Executioners revelations stand to accelerate. According to the whistleblower complaint, Deputy Vega, who shot Guardado six times in the back, was “chasing ink”-- a term used to describe efforts to impress the Executioners in order to be drafted into their ranks and obtain their signature tattoo: a skeleton backed by flames, brandishing a rifle and wearing a Nazi-style helmet.

Part of what makes this dynamic notable is how ordinary it is. Though the central allegation is that the Executioners “dominate” the Compton sheriff’s office, at least nine other such gangs are known to operate across the department, and have done so for decades. “Vikings, Reapers, Regulators, Little Devils, Cowboys, 2000 Boys and 3000 Boys, Jump Out Boys, and most recently the Banditos and the Executioners,” Matthew Burson, chief of the department’s professional standard division, told KABC last month of the LASD’s gang problem. “I am absolutely sickened by the mere allegation of any deputy hiding behind their badges to hurt anyone.” Sheriff Alex Villanueva has said he intends to fire or suspend more than two dozen deputies involved in a widely covered assault on four non-gang members at an off-duty party in 2018. Villanueva was elected under immense pressure to clean up the department, whose former heads-- Lee Baca and his undersheriff, Paul Tanaka-- were convicted of obstructing a federal probe of abuses in the county’s jail. Tanaka was an alleged member of the Lynwood Vikings, a white supremacist sheriff’s gang. Villanueva has also said that he will implement measures to discourage deputies from joining these cliques at all, but county Inspector General Max Huntsman said last month that he’d seen no evidence of this actually happening. The fallout has been costly on several fronts. Since 2010, misconduct claims linked to these sheriff’s gangs have cost the county $21 million in settlements and associated legal costs, according to the Los Angeles Times.

It’s hard to make sense of this phenomenon without acknowledging that discrete individual malfeasance is insufficient for explaining its scope and longevity. The existence of ten or more gangs operating within the law-enforcement agency that patrols America’s most populous county, and whose members have occupied its highest ranks, indicates a level of tolerance and normalization that cannot be isolated to any one person, and a scale of public danger that cannot be calculated in mere dollar amounts or police shooting statistics. These gangs have been implicated in sustaining an environment of terror, and are regularly celebrated and rewarded for it. Their existence, and seeming intractability, are stark manifestations of the ways that American law-enforcement agencies operate as fraternities the nation over, with less regard for public partnership than for capitalizing upon their own impunity. This is perhaps most evident in the conduct of police unions. But survey any heavily patrolled community and it becomes clear that the existence of police gangs are not necessary to promote illegal arrest quotas, work slowdowns, or internal plaudits for acts of brutality-- though gangs are an especially brazen way of formalizing them. This is simply the reality of policing.

A full year ago-- so long before the Democrats chose a candidate-- the International Union of Police Associations endorsed Trump’s 2020 re-election campaign. In doing so, union chief Sam Cabral said "Every top Democrat currently running for this office has vilified the police and made criminals out to be victims. They seem to take any union’s support for granted. Many of them still refer to the tragedy in Ferguson as a murder, despite the conclusions of every investigative inquiry to the contrary. While his candor ruffles the feathers of the left, I find it honest and refreshing. He stands with America’s law enforcement officer and we will continue to stand with him." Last month the union representing most NYC cops also endorsed Trump. Union president Patrick Lynch, said "Across this country, police officers are under attack. Our neighborhoods are being ripped apart by violence and lawlessness. Most politicians have abandoned us, but we still have one strong voice speaking up in our defense."

Will Trump Leave Office Peacefully?

Just Beneath The Surface by Nancy Ohanian

LOL!

I know I'm always complaining how Inside-the-Beltway political writers are overly cautious and weeks behind in their prognosticatin'. Well... National Journal's Josh Kraushaar surprised me this week: Prepare For A Biden Landslide. Unless Trump figures out how to steal the election, Kraushaar is probably right on point. His set up was that Trumpanzee's Tulsa rally was a bust-- "empty seats, a canceled outdoor event, and a rambling speech that failed to land many punches against Joe Biden"-- and a "foreboding sign that his once rock-solid base is softening in the run-up to the election. Dealing with the triple threat of a pandemic, frayed race relations, and a battered economy, even some of the president’s supporters are questioning whether he’s up for the job." The latest Fox News poll shows Trump losing by 12 points, "the latest hint that some of the president’s closest allies are starting to lose the faith."

While his support among some rural and evangelical voters is getting shakier, for a president, wrote Kaushaar, "who has relied on a base-first strategy at all costs, hoping to win reelection without courting new voters, even the slightest slippage among rock-solid Republicans is alarming" and he asserts that while the revelations from Bolton’s new book may not matter to Trump’s hardcore base, "there are plenty of softer Republican voters already close to breaking away."

So what does it all mean for the November election? Right now, it looks more likely that Biden will win a landslide victory, picking up states uncontested by Democrats in recent elections, than it is that Trump can mount a miraculous turnaround in just over four months. Even as Trump tries to advance a law-and-order pitch amid growing violence and tumult in the nation’s cities, it’s unlikely to benefit the president because he’s the leader in charge. The chaos candidate is now the chaos president. Biden is the challenger pledging a return to normalcy.

Just look at the swing-state map: Biden is leading in every battleground state, according to the RealClearPolitics polling averages, with the exception of North Carolina where the race is tied. Trump trails by 6 points in the electoral prize of Florida, where the president’s newfound willingness to meet with Venezuelan dictator Nicolas Maduro prompted a fierce backlash and quick White House retreat. He’s down 4 points in Arizona, a state that has only voted for a Democratic presidential candidate once since 1964. He’s not close to hitting even 45 percent of the vote in Michigan, Pennsylvania, or Wisconsin-- the Midwestern states he flipped to win the presidency.

Meanwhile, the Trump campaign is airing ads in Iowa and Ohio, two states he won by near double-digit margins in 2016, as recent polls show Trump in precarious shape in both states. Public polling even shows Biden within striking distance in Georgia and Texas, two electoral prizes that would normally be safely Republican ... unless a big blue wave hits in November.

Right now, Biden leads Trump by 10 points in the RCP national average, a greater margin than former President Obama’s 7-point landslide victory over John McCain 12 years ago. A best-case Biden scenario would net him 413 electoral votes, which would be more than any presidential candidate since George H.W. Bush’s rout of Michael Dukakis in 1988.

Trump made history in 2016 with his stunning come-from-behind upset against Clinton. He’s at risk of making a different kind of political history unless he’s able to suddenly turn his fortunes around.

Two questions flow out of this newish conventional wisdom:

1- how big powerful will the reverse coattails be,.meaning how many seats will the Republicans lose in Senate, House and legislative races? and

2- what if Trump refuses to acknowledge defeat?

We'll be dealing with the House races over the next few weeks but in terms of the Senate, a "Biden landslide" (a misnomer since Biden has nothing to do with it whatsoever) is likely to yield the Democrats seats in Arizona, Colorado, Maine, Montana, North Carolina, Iowa, possibly Kansas, Alaska, Kentucky, South Carolina and one-- or even two-- Georgia seats.



As for the second question... Verdict published a worthwhile post by Neil Buchanan, a legal scholar at the University of Florida's Levin College of Law, yesterday, Trump’s Upcoming Refusal to Leave Office: The Good News. He's optimistic that Trump will lose in November but decided to discuss what he calls the inevitability of a Trump coup attempt, given that "Trump will stop at nothing to hold onto power." He's been worrying that only a handful of national commentators have finally started to say that Trump will refuse to accept losing, "even as most commentators and Democratic politicians were pretending that the election will be fair and that Trump will leave office peacefully."

And it is not as if people have not been warned. More than a year ago, Trump’s former “fixer” Michael Cohen stated plainly that “there will never be a peaceful transition of power” under Trump. Perhaps because Cohen is otherwise such a pathetic character, but more likely because people prefer to deny what they cannot face, that warning was soon forgotten.

In my Verdict column earlier this month, I imagined what would happen if a news reporter were to take my warnings seriously and try to get Republican politicians to affirm on the record that they would stand up to any attempt by Trump to defy the will of the voters. What would those Republicans say, given that they could never admit that they would abet him when it came time to stealing the election?

My prediction was that those politicians would feign outrage, denouncing the reporter for even asking such a question. We soon, however, saw an unexpected test run, when an enterprising reporter (Grace Panetta of Business Insider) asked a long line of Republican U.S. senators to comment on Trump’s gassing of protesters on his way to defiling a Bible as part of a political stunt near the White House.

It turned out that these senators could not even be bothered to answer the question at all, much less muster the energy necessary to fake a bit of righteous outrage. Most of the Republicans ignored the reporter entirely or claimed not to know what had happened.

This suggests that, if asked a hypothetical question of the sort that I imagined regarding a Trump coup, Republican senators would simply stare blankly and walk away. If they cannot even be roused to say something when the President of the United States abuses his powers to violently stop citizens from exercising their First Amendment rights, why would they say anything to warn Trump not to shred the rest of the Constitution?

Our Institutions Are Only as Strong as the People Who Inhabit Them

One possible answer to my question about how the American political system would respond to Trump’s refusal to accept losing is to treat that system as a disembodied machine that was perfected and handed to us by the nation’s founders. Trump will not succeed, the argument goes, because “our institutions” will not allow him to do so.

...What we know is that Trump is willing to fire prosecutors, to mobilize military troops, to abuse the courts, and to claim that everything that has happened to him is corrupt. He simply will not go, and his coup will not begin and end on Inauguration Day.

Indeed, one of the things that Trump and his supporters have been doing for years now is to coopt the word “coup” as a preemptive move, to drain it of all meaning. Indeed, they now use that word to describe any situation in which Trump is opposed via legal means. The Mueller report was supposedly an attempted coup, Trump’s impeachment was similarly an attempted coup, and pretty much everything else is a plot to take away Trump’s “landslide” victory in 2016. “Coup,” in their mind, means “Trump not being President anymore.”

So Trump has already degraded the language by using against his enemies the very word that best describes what he is doing. And no matter how much wishful thinking Kaplan wants to engage in, Trump will spend every day trying to convince people that he is the rightful winner of the election, which will involve efforts never to get to the point where “everyone knows” that Trump lost and must leave when his term ends.

This can only be prevented if the people who work inside our institutions are actually willing to do what their roles demand of them. Trump, for his part, will do what is necessary to convince people that Biden lost.

In other words, no one is saying that Trump will say something like this: “I lost, but I refuse to accept losing. I’m not leaving.” It will be: “I didn’t lose, no matter what the evil press and the deep-state conspiracy says. Massive voter fraud! The courts are corrupt. Second Amendment people need to stop this coup!!” The idea is not to get people to defy the rule of law directly but to get enough of them to be confused about what the law requires that they do not even know who won. “I didn’t lose, I won,” Trump will shout. “The radical socialist Democrats are the ones who hate our beautiful Constitution.”

The Only Way to Stop It Is to Be Honest About It

As I also noted in my column earlier this month, there might not be any point in saying out loud what Trump is going to do, because there might be nothing that we can do in any case. If Trump is going to be abetted by his partisans, and given that he is willing to stop at nothing, maybe there is truly nothing to be done.

If that were true, then we would now be living in what we might as well call a “dead democracy walking.” We might not realize it yet, but our constitutional system might already have been fatally wounded and is simply in the process of bleeding to death. Not dead yet, but irreversibly doomed nonetheless.

As depressing as that is, it might be true. The only way for it not to be true, however, is for people to see clearly what is at stake. For the reasons that I noted above, many people (most definitely including Democratic politicians) have shied away from saying that Trump’s existential threat to the American experiment includes the possibility of an outright refusal to leave office peacefully.

Because I saw no reason to think that politicians, pundits, or reporters would be willing to speak this truth out loud, I concluded that we would be doomed by what amounts to a timing problem. That is, by the time that people were finally confronted with evidence that they could no longer deny, it would be too late to stop the worst from happening.

All of which brings us to my reasons for being at least a tiny bit optimistic about what might yet happen in this country. It turns out that people might be waking up now, which might give us a fighting chance to prepare to stop Trump before it is too late.

For one thing, I have been happy to learn that mine has not been the only voice warning about Trump’s unwillingness to accept losing. I have never been a fan of the pundit Bill Maher (for a variety of reasons), so I did not realize until someone told me recently that Maher has been sounding similar alarms about Trump for some time.

Moreover, at least some of my fellow academics have been working on these issues (much more effectively than I have, if I am to be honest). For example, the legal scholar Lawrence Douglas at Amherst College has now published a book-length inquiry into these questions, the title of which poses the key question: Will He Go? Trump and the Looming Election Meltdown in 2020.

...Here is a particularly helpful (if chilling) sample of his commentary:

[I]f 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.

Professor Douglas points out that there are ways for the Electoral College to become a point of contention-- not (only) in the sense that it allows a person to become President with a minority of the votes (as in 2000 and 2016) but in the even more disturbing situation where state-level Republicans try to defy their own states’ voters by refusing to certify Joe Biden’s electors.

This could, in turn, throw the race into the U.S. House of Representatives, in which another anti-democratic feature of the Constitution would (even though Democrats are in the majority) allow Republicans to make Trump President again. (Hint: Every state gets one vote, not every member of the House.)

That all sounds pretty bad, and it is. Professor Douglas does, however, offer one concrete reason for hope-- and one that has caused me to rethink how I imagine the end of this year playing out. His Vox interview ends this way:

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.

...The Douglas hypothesis, however, points out that the nightmare scenario has a lot of moving parts, and larger voting margins make it more difficult for Trump and the Republicans to manipulate enough of those moving parts to pull off a coup. If, say, Florida’s voters choose Biden by 0.4 percentage points, it will be relatively easy for the Sunshine State’s Republicans to convince judges and others (as well as themselves) that the state need not certify Biden electors. But if they are willing to steal the election for Trump even if he loses by, say, 55-45, then we are already doomed. There is reason to believe that we are not there yet.

In the end, then, the decentralized nature of the U.S. system of voting makes it very, very important that Trump and the Republicans have as few avenues as possible to steal the election. That it is necessary to say to Democrats, “You can’t just win, you have to win big,” is a sad commentary on where we are today, but it is true nonetheless.

Perhaps the biggest reason, however, that I am feeling some sense of optimism that we might emerge from 2020 intact-- though surely battered and bruised as a nation-- brings us back to my comments above about the importance of all of us collectively emerging from the state of denial in which we have been living. Democrats need to stop politely refusing to call Trump out on his election-stealing intentions.

And lo and behold, Joe Biden himself has finally said it out loud. Less than two weeks ago, Biden appeared on The Daily Show with Trevor Noah and was as blunt as possible: “It’s my greatest concern, my single greatest concern. This president is going to try to steal this election.”

Biden also said this: “I am absolutely convinced [the military] will escort him from the White House with great dispatch” if Trump refuses to leave. Although that is the naïve framing that I described above (everything being in place on January 20, with Trump clutching the door frame of the Oval Office as he is dragged out), it is nonetheless notable that Biden was willing even to talk about something so seemingly extreme.

After all, Joe Biden might be the very embodiment of what has come to be known as “defensive crouch liberalism,” which is the habit of mind by which centrist Democrats lack the courage of whatever convictions that they claim to have, choosing instead not to fight and to preemptively compromise with their opponents (and then to give away even more during negotiations).

Al Gore was a gentleman who stepped aside in 2000 even though he had both facts and law on his side, all in the name of preserving the republic. No matter what one thinks of Gore’s choice, the only way to preserve the republic now is to fight. And with Joe Biden already sounding the alarm in early June, no one else has any reason to pretend not to see what Trump is up to from here on.

Things could still go very badly, as I will argue in the second and final part of this series tomorrow. But seeing Biden and the Democrats at long last stop pretending that this is business as usual should give us some reason to imagine that all hope is not lost. For now, I welcome even that highly contingent good news.