What the Devil won't tell you
Southern Az voters uniquely positioned to prevent Trump from stealing election
Are conspiracist ideas about White House occupancy plausible plots or pure paranoia?
I don’t like the term “fear porn,” especially used to dismiss stuff like a president monkeywrenching the U.S. Postal Service to prevent his opponents from casting ballots. It’s not hysterical hyping to notice a president declare that his re-election is the only legal outcome to an election.
Writer's indulgence: I think Trump'll try to look like he's trying to steal it to say it was stolen from him so he can forever cast himself as the victim. That's been the hallmark of his presidency: Appear to be doing something while doing as little as possible and then indulge in the grievance of getting no credit. On the other hand, he's committed a bunch of crimes and the statute of limitations is running....
The electoral pornography, if you will, assumes a clear victory for Biden — an outcome that would prompt any other president to concede. But Trump has all but declared he's going to try to hold power no matter the votes show. Many assume there's an appetite for this fight among his GOP soldiers. I'm not so sure because it's a lot easier to steal a presidential election than it is to steal a House, Senate or legislative election and those are the people who would have to steal it for him.
Voters tend to remember stuff like that.
A tie — like the one in 2000 we saw determined by just 537 voters (plus another seven in Washington, D.C.) — goes to the tie breaker. That's the courts and the courts would probably affirm a Trump win.
If Biden wins states like Arizona, North Carolina and Pennsylvania by 10,000-plus votes and tries to declare himself the winner, that's a different story.
The important thing to remember is, it ain’t up to Trump. He can't steal the election himself. Others would have to do the dirty work. Southern Arizona is uniquely situated to bust this crime in progress, because the deciders will be people elected right here.
Tucson-area area voters are casting ballots in a swing state at the presidential level and a hotly contested U.S. Senate race. The 2nd Congressional District's fight could damned well decide if Trump can win an election in the U.S. House of Representatives. Republicans hold control of the Legislature by their cuticles, which could decide who gets the state's electoral votes.
The Sonoran Desert is to a Trump heist what Little Round Top was to Gettysburg.
Warning, TL;DR folks: this is longer than even I like but there are a lot of twists and turns to this. At each one, an Arizonan stands in the way of Trump seizing power. But at the end, I will show how Pelosi could Merrick Garland this election.
In the meantime, voters are the opposite of helpless.
Let’s talk process: You vote for president. That vote is tallied up in the county where you cast your ballot and becomes a part of the official statewide canvass. The Arizona secretary of state then declares an official vote tally (that’s what a canvass is) for the electors sworn to either Donald Trump or Joe Biden.
The state’s electors cast their ballots for their candidate and Katie Hobbs then sends the results to a bunch of places, including the U.S. Senate. The new Senate, including those senators elected in November, then meets in early January and certifies the results of the tally. Barring any challenges, senators must accept all electoral votes cast by the Electoral College before the "safe harbor date" of Dec. 14.
If the Senate adds up the votes after the first of the year and counts 270-plus votes for Biden, then that’s it. It’s done. Nothing but death stops Amtrack Joe from taking the oath of office on Jan. 20, 2021, and any effort to stop him is an illegal coup d'etat and he doesn’t have to play nice. We can build a new White House, Mr. Maher.
There are basically three types of conspiracist fantasies at play here. Let’s assume for all three "theories" that Biden carries Arizona by the popular vote. First, let’s deal with the one that will scare the crap out of you.
Version One: The apocalypse (in theory)
Let’s say Joe Biden wins big. He wins Arizona, Florida, Michigan, North Carolina, Pennsylvania and Wisconsin by 10 points each. And he holds all of Hillary states. Throw in a surprise win in Texas and Ohio. That’s 382 Electoral votes. No drama. The race is over.
Rather than conceding the next day, Donald Trump says, “I can not allow, under any circumstance, the socialists and the mob to destroy America. Therefore, I, Donald John Trump, call upon the legislatures (list the states) to restore their unquestioned authority to award their electoral votes to the Trump/Pence campaign, thereby securing the country’s freedoms for generations to come.”
What is to stop the legislatures? According to current court precedents? Nothing. Any state with a Republican-controlled legislature can nullify a Biden win of the popular vote there, and hand that state to Trump.
Forget about post offices, Russian plots and proving voter fraud. The Republican Party has just declared it supports nothing separate and apart from Donald John Trump. That's the sole plank in their platform.
The overwhelming consensus among constitutional scholars from the Right and Left holds that legislatures have unlimited discretion in selecting electors. We’ve essentially been living under an illusion. The states have always each held a veto power over the popular vote of their respective residents.
This kind of shocked me. Trump has enough legislatures right now to keep him president and the U.S. Constitution lays it out:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress;"
"In such manner as the Legislature thereof may direct" has been interpreted as absolute power.
The SCOTUS majority, writing the Bush v. Gore ruling, mused: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”
Bush v. Gore wasn’t binding on future cases but it quotes an earlier ruling written by Salmon Chase, that read: “[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.”
Read “at any time” to mean after voters elect someone the legislature doesn’t like.
Prediction: Plenty of state, federal district and appeals court judges are going to rule with intellectual consistency to uphold the state power knowing they will in no way have the last word. It's a freebie.
Version 1: The Apocalypse (in practice)
This is a nice theory that's fun to discuss over beers and in non-binding decisions, but to unleash it on the country now could set off a chain reaction that would remind a historians of 1861.
Chief Justice John Roberts apparently didn’t want his court to have a reputation for partisanship when he ruled on Obamacare. He initially came down squarely against it, and then wrote the opinion upholding the law.
You think he’s going to want to be known through history as the guy who facilitated the theft of democracy?
The judge looking for a way to save Obamacare will be looking for a reason to save the Republic. The Supreme Court doesn't want to decide a bunch of future elections, which it almost certainly would if a 2020 larceny pans out. He won’t be making the decision in some vacuum either. He’ll be aware of the crisis he’d be uncorking.
The court majority is a bunch of Ivy League Bushies. That's far from Trump's core demo.
We would be in a legal alternate universe, and most scholars are saying they don't have a clue what direction the court might go. However, the Trump team would immediately be faced with a legal challenge of their own.
The states have all passed laws giving the right to select the electors to the people. So the question of the 21st Century is this: “Do the states have to change the law prior to the election it effects?”
Harvard’s Daniel Carpenter, who studied this question in depth with Ivy-League eggheads, reached the definitive conclusion on that: “It gets endlessly legally complicated here.”
Oh, well, then. It’s probably not that important. On the other hand, "legally complicated" seems like just enough chaos to find safe harbor without abandoning principles. The court could say, "Yes, they do have to change the law first," and buy their asses time.
I'm not a lawyer. I've learned though, never to underestimate a government official's desire to punt.
The question appears to come down to the definition of “legislature.” Is the definition limited to the lawmaking body or is it expansive to include the lawmaking process. If it's a "legislature" that has the power then it's just the lawmaking body. If its the process, that could include a governor. Four of the six major battlefield states have Democratic governors.
Curiously, it was in Arizona Legislature v. Arizona Independent Redistricting Commission that the high court ruled the broader definition applies. Justice Anthony Kennedy proved the swing vote in a 5-4 decision. Kennedy is gone. Roberts is the new swing vote and Roberts basically mocked the majority, saying “Legislature means Legislature.”
Great, Mr. Chief Justice, but national chaos means national chaos.
Arizona voters can fix their end by tossing the most tenuous Republican legislative majority in the country.
“But won’t they be seated too late?” Eh. Did I mention Dems may be able to steal it back? More in a sec.
Version Two: Jam the courts and stall for the House
This is where you come in, Southern Arizonans.
Former Colorado Sen. Tim Worth pondered a scheme that outlines another common fear. Trump could jam the courts and win enough stays to prevent the Electoral College from casting votes by the safe harbor date of Dec. 14.
Say they can’t certify an electoral vote winner. The election goes to the House, as dictated by the Constitution. There the vote would be taken among state delegations and not by individual members. Republicans now control 26 state delegations, which is the bare minimum Trump needs.
This is dicey because this conspiratorial proposition skips a pretty important step: the 2020 election. Two years ago Republicans held a 32-17 lead. Then they lost in 2018. Democrats lead in the generic ballot by pretty much the same they did during the midterms. Flipping one seat in Florida would deny Trump the needed delegations. Hell, Montana is competitive. Alaska is competitive. Three places no one should predict politically are Montana, Alaska and Florida.
If you are concerned about that, suddenly Ann Kirkpatrick is less of a dull Flagstaff import and more of a national and historical imperative.
Today, Arizona's vote would count among the Biden votes, because we send five Democrats and four Republicans to the House.
If Southern Arizona voters elect Republican Brandon Martin then the state would almost certainly count among the Trump votes. In the "contingent election" conspiracy, that could hand the presidency right back to Trump.
Kelly, Kelly, Kelly, Kelly, Kelly, Kelly
Same goes with Mark Kelly, currently leading U.S. Sen. Martha McSally in their race’s polling.
Remember the safe harbor date? The Senate must accept electoral votes cast prior to it (or must they?). They can accept votes delivered after it. In 1960, Hawaii delivered its votes for John F. Kennedy late and the Senate took them and counted them anyway.
The games are up as soon as the Senate certifies 270 electoral votes for Biden but they may end up with discretion depending on the time line of court rulings.
Kelly could give the presidency to Sen. Kamala Harris, if the states congressional delegations wind up split 25-25 and neither Trump nor Biden win a contingent election in the House.
If there's no Electoral College winner, the senators individually vote in a contingent election of their own for vice president among the two top candidates in the Electoral College. So if Senate control ends up hinging on Arizona, which it might given Thom Tillis’ imploding prospects in North Carolina, voting in the Senate would at least make Kamala Harris the next vice president. She would become acting president on Jan. 20, if there's not a result in the House.
Nothing would stop her from appointing Joe Biden vice president and then resigning. If you are wondering, it would be harder for Pence to do the same for Trump because an appointed veep, would have to be confirmed by both houses and it looks like Democrats will hold the House.
See? This is why this column is so long.
Version Three: SCOTUS rubber stamps POTUS
I'm not going to dwell on this. I debated even including it. It's unfathomable that Trump will claim "Fake News!" and get a court to concur with his rantings.
I'm trying to picture a court opinion that says: "The majority holds, that the system is rigged because of this brand new thing called 'vote by mail, that no one is talking about. Donald Trump, the very stable genius, finds that ballots are being cast by dogs. It's a disgrace! It's an absolute disgrace! Woman. Man. Person. Camera. TV.'"
Call me crazy but the idea that the high court majority will lend its name and sacred honor to Trump's insane talking points is bonkers. The court has smacked Trump down repeatedly when he gives them nothing but Twitter logic.
Don't get distracted by futility. Focus on voting, maybe organizing and perhaps getting others to vote, too.
Version four: Mug the post office
In Arizona, you've never had the right to have your vote counted if it arrives after Election Day. Vote early, or bring your early ballot to the post office if you wait until the last 10 days to mail it. No one I saw in 2018 who did this had to stand in line.
Or just drop it off yourself at one of the early voting sites being set up by the Recorder's Office, and eliminate the middleman.
The Trump administration are being absolute dicks about this, but they aren't stealing your vote. Get your ballot early and turn it right in. Soldiers, yes. Victims, no.
Endgame: The ghost of Merrick Garland
Who says Democrats can't play hardball? (I know, aside from every Democrat ever elected to office).
Say Arizona's Legislature ships off its electors for Trump and the court rules legislatures are free to do so at any time. If you, Arizona voters, flip the Legislature (doable), the new slate of lawmakers in January can exercise their "at any time" prerogative and rescind Trump's electors and appoint Biden's electors.
The votes will arrive after the "safe harbor" date but if Mark Kelly is in the Senate and not Martha McSally, it's a good bet Democrats have the votes they need to accept Arizona's electors. Kelly wouldn't be stealing the election. He'd be reasserting the true victor.
And "at any time" means "at any time," Chief Justice Roberts.
Hey, if the right of the Legislature to decide to determine electoral votes can’t be abridged or abdicated by any law then the safe harbor law would seem unconstitutional. As the incoming U.S. House and U.S. Senate hold the contingent election in Washington, doesn’t it make sense for the incoming legislatures to make that vote too?
Current federal law requires action beginning in the first week of January, but constitutionally, there’s no reason the Senate or the House must act prior to January 20, when the president’s term ends. The Senate has discretion. So it could wait for the Arizona Legislature to convene on January 14.
No, I'm no legal scholar but fiction writers are as good as anyone in sussing out the possibilities once Trump takes an axe to the Looking Glass. Hey, my Legislature Double Cross isn't even the craziest scenario out there about how Dems could play hardball.
Harvard’s Carpenter also came up with a pretty wild theory about how if Democrats hold the majority, Speaker Nancy Pelosi could basically steal the election back during a House vote for president:
"I argue that if we’re already in the world of constitutional hardball, Speaker [Nancy] Pelosi could convene the Congress early in January and reconstitute the delegations and give the Democrats a temporary majority sufficient to elect Biden the president in that House vote. (I say the speaker, but it’s really the majority; she would have to have her majority in line.) She would use the contested election power. They would choose enough Democrats in contested elections, and do so very quickly, to give the Democrats a majority of delegations."
Basically, Pelosi could say "The House majority doesn't think you two Michiganders or you three Floridians won legally. It has to go to a vote before the House. But first – who’s for Biden?"
Take that, Mitch McConnell. Merrick Garland is avenged.
The point of all of this way-too-long column is that Trump doesn't get to decide if he stays or goes. A whole bunch of other people do and they report to you, Dear Voter.
Voting for Biden, if you choose to do that, also entails defending that choice with party-line voting right down the ballot.
It's unfortunate. Ideally, each race would be judged on the candidates' merits. Trump's nods to conspiracy are taking that away and that's bad news for Martin's campaign against Kirkpatrick. He's going to need Biden voters to break his way in a district Hillary carried and the former vice president is certain to win.
Whatever the case, voters right here in within an afternoon's drive of Tucson are not victims. They're the tip of the spear.
Blake Morlock is a journalist who has spent 20 years covering government in Arizona and also worked in Democratic political communications. Now he’s telling you things that the Devil won’t.