The Trump plan unfolds in 5 Acts, deluding the public about voter fraud, suppressing & challenging votes in all Democratic precincts, delaying state vote counts, asking GOP state legislatures to not certify vote counts if Biden wins, and then Act V…
The Atlantic article, “The Election That Could Break America,” is so important that we simply had to do something to ensure that all Retake readers understand the gravity of the situation and, more importantly, the possible strategies to address the crisis. And this, my friends, is looking to be the gravest Constitutional crisis since the Civil War. I want to stress one thing: while the situation is a crisis, it is a crisis that can be addressed. There is a path to victory on Nov. 3, but as the summary below outlines, it is one fraught with risks.
The best solution is to create an irrefutable Biden win the night of Nov. 3 to prevent Trump from employing his devious strategies to steal the election. To do this, everyone should understand the rules in your state and county. In NM, all votes cast in person at early voting stations will be counted immediately. This is true in many states. So if you can safely do so, voting early in person is the best strategy as it ensures your vote will be counted, reduces the number of mail-in ballots to be counted, and reduces lines for election day voting….and spares you some pretty heinous election suppression plans for the day of the election. These plans and other Trump strategies are summarized below.
Before we dive in, I wanted to remind you of two things and offer links to both:
First, last Saturday I interviewed Brittney Barreras who is challenging Art de la Cruz in a NM House race to represent the south valley of ABQ. Brittney is a newcomer to politics and she is challenging a Democrat who was a Bernalillo County Commissioner whose contributions were to serve as a huge advocate for massive development (Santolina’s key ambassador) and a man who prevented passage of paid sick leave in Bernalillo Co. Need I say more?
This Saturday, KSFR will air our interview with Maya Van Rossum, founder and director of the Green Amendment, a bill that will give all people the right to clean water, air, and environment. The Green Amendment exists in her home state of Pennsylvania and in Montana, and it will very likely be introduced in 2021 in NM as a resolution to put it to a vote to create a NM State Constitutional amendment. Maya is a tremendous interview, insightful, passionate, and knowledgeable. Retake will strongly advocate for this bill. Find out why.
An Election Like No Other
Before we summarize and discuss The Atlantic’s “The Election That Could Break America” (and it could), please note: Barton Gellman, the author of the piece, is a three-time Pulitzer Prize winning investigative journalist, not a common hack. He knows this terrain and the piece he penned is well detailed, thoroughly documented, and based on facts, laws, quotes, and prior actions. While the tale he tells reads almost like George Orwell, his reporting is spot on. We are living 1984.
Some key dates to keep in mind:
- December 8, “safe harbor” day, or the day every state must certify their election and appoint the electoral college electors committed to the winning candidate—keep this crucial date in mind, as it is vital to Trump’s election disruption strategy.
- December 14 is the day electoral college electors meet in all 50 states to vote;
- January 3 is when the newly elected Congress is seated;
- January 6 is when the House and Senate meet to tally the electoral votes;
- January 20 is Inauguration Day — if we do our jobs, champagne will be popped throughout the world and we will all breathe a sigh of relief and begin the work of restoration and transformation. But first, the substantial & undemocratic hurdles we face.
First, Trump himself. We’ve clearly never had a president so narcissistic and unstable as Donald Trump. We don’t need to spend time on this but you might want to review another article from The Atlantic from June 2016, “The Mind of Donald Trump,” which describes the pathology of Trump as being narcissistic and consistent with a sociopath who is incapable of taking responsibility, incapable of compassion, and incapable of accepting defeat. And this was written in 2016, before a mountain of statements and actions that would lead any objective person to reach this conclusion. It is important to keep this in mind, as what follows is so deranged, so myopic, and so unprecedented in US history as to at times seem impossible.
The Plan, Act I: Sowing Seeds of Distrust in Mail-In Voting
For months, despite absolutely no evidence of mail-in or absentee ballot fraud, and despite mail-in voting being historically used predominately by seniors who tend to vote Republican, Trump and his minions have been on a non-stop campaign to convince his followers that the Democrats plan to steal the election through mail-in voter fraud and that China is going to send millions of mail-in ballots with votes cast for Democrats. This despite the fact that two studies, one by the non-partisan Brennan Center for Justice, found the rate of voter fraud in three elections to be between 0.0003 percent and 0.0025 percent. Another study conducted by Loyola Law School investigated elections from 2000-2014 and found out of more than a billion votes cast, just 31 instances of voter fraud.
How anyone could even begin to present voter fraud as a serious threat to democracy speaks to the pathology of Donald Trump. But it also speaks to the craven, obsequious GOP, from the most junior state legislators to GOP Congressional leadership and GOP Governors across the nation. No one has stood up to any of Trump’s nonsense, and it is very scary to think that without a Biden landslide, the only thing that will prevent Trump from successfully stealing the election is the sudden emergence of a GOP conscience.
The plan to claim voter fraud began the day after the 2016 election, when it became clear that Trump, while securing an electoral win, lost the popular vote by just under 3 million votes. A balanced human being would accept this and move on. Not Trump. He immediately claimed that over 3,000,000 undocumented immigrants had cast fraudulent ballots for Clinton, another indicator of a deep personal insecurity. And then at his inauguration he proclaimed the largest turnout in US history, despite an embarrassingly low turnout.
Trump has sounded an unending drum beat, pounding out the message to believing followers and echoed on Fox: “The only way they can take this election away from us is if this is a rigged election,” he told supporters at the RNC convention. On Fox he told viewers that if mail-in voting were allowed, it would create “levels of voting that if you ever agree to it, you’d never have a Republican elected in this country again.” A few days later, he tweeted: “MAIL-IN BALLOTS WILL LEAD TO MASSIVE VOTER FRAUD AND A RIGGED ELECTION.” Even in 2016 he cast doubt on if he would accept defeat.
Donald Trump in Ohio, Oct. 2016
““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!”
The importance of the non-stop claims that vote-by-mail equates with a fraudulent vote is that, as reported in The Atlantic, some states are anticipating a ten-fold increase in mail-in voting. And it’s worth noting that in the 2020 primaries, over 500,000 mail in ballots were tossed out, either because some voter wrote his name as Dick on his ballot and Richard on his registration, or because he failed to sign the ballot on the correct line, or because he/she failed to place the ballot in the security envelope correctly. None of these ballots were fraudulent, they were flawed in minor, technical, and obviously accidental ways.Yet they were tossed.
In this election, every suspect ballot will be scrutinized. And the GOP has trained 50,000 precinct observers to do just that in 15 swing states. And their definition of “suspect”? Brown skin, urban, young, or living in a heavily Democratic precinct. They will be looking for any uncrossed “t” or undotted “i” to question or eliminate any suspect vote. Remember the hanging chads? That was child’s play compared to what the GOP now has in mind. And note, I did not say what Trump has in mind, but the GOP. That’s because the party has been orchestrating this effort for years, and it is an indication of how little concern for democracy and an honest election we can expect from the GOP.
As Gellman noted, “This is a strategy of a man [and party] that expects to be outvoted and means to hobble the count.” And keep in mind, a poll in late July reported that 60% of Democrats and only 28% of Republicans are likely to vote by mail.
The Plan, Act II: What Happens If Trump is Winning at Midnight But Clearly Will Lose If All Ballots Are Counted
Trump has repeatedly stated that the election must be called by midnight on November 3 or it will be invalid due to rampant voter fraud by the Chinese, by undocumented immigrants, or by thousands of people voting scores of times. He understands that this is a pandemic and people will want to avoid crowds; he understands that because he has so methodically told his followers, you don’t need masks, there is no risk to coming to my rallies, so there is no risk to vote in person on Nov. 3, they will show up on Nov. 3.
As a result of these factors, more than twice the number of Democrats intend to vote by mail in this election. But another factor called the “blue shift” virtually ensures that the Democrats will likely be trailing in many states early in the vote count. The blue shift is the trend over the past 20 years of Democratic votes coming in later, votes called “overtime” votes, as they are counted late. Overtime votes occur not because of mail-in ballots being counted late, but because:
“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.”From The Atlantic: “The Election That Could Break America”
In 2020, this blue shift will be compounded by the deluge of mail-in votes. The blue shift hasn’t yet impacted the results of a presidential election, but as noted by The Atlantic, it reversed a Senate race in AZ in 2018, with Martha McSally leading by over 15,000 votes at the end of election day, only to lose by 56,000 votes when all votes were counted. That defeat was accepted by McSally. But what happened in Florida’s Senate and Governor races that same year is a harbinger of what is likely to come in 2020….and they got away with it.
“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!’ ”From The Atlantic: “The Election That Could Break America”
So while DeSantis and Scott narrowly prevailed, it freaked Trump enough to begin his calls for elections being called on election night.
Recall that in 2000 in Florida all kind of chicanery was used to suppress the vote and curtail the count including the infamous “hanging chads,” and Republicans fomenting a protest led by Bush-campaign-paid “ballot guardians” that appeared en mass just outside the site of ballot counting. The protest escalated to the point that it prevented ballot counting personnel to get to the ballots that needed counting. When the “final” vote came in Gore was losing by a mere 327 votes and over 60,000 votes remained uncounted and were labelled “undercounts” (the hanging chads). What followed was a torturous legal battle that stalled a hand recount of the “undercounts” from even beginning. As the date by which the state had to certify the election approached, Gore conceded. Gellman points out that this is child’s play compared to what the GOP has planned for 2020.
Gellman spoke with a top legal advisor to the Trump campaign who baldly stated that: “They are asking for it. [The Democrats.] 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.”
Above I mentioned the 50,000 trained precinct observers ready to descend on precincts that are expected to have “suspect” votes. Well, the GOP was hard at work throughout the primaries, examining the vote count process and studying ballots that were reviewed for being incomplete or incorrectly completed. They didn’t challenge anything, they just took notes. And now those 50,000 observers are prepared to challenge every “inaccurate” or “fraudulent” vote….pick your word.
All of this has already happened, but Gellman wonders: What might a ruthless incumbent do? The answers will make your skin crawl (as used here, the term “canvass” is technical jargon for counting the votes):
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.From The Atlantic: “The Election That Could Break America”
Gellman goes on to describe variations on the same theme: Attorney General Barr discloses “evidence” of China submitting tens of thousands of ballots by mail in Milwaukee, Philadelphia, and other Democratic strongholds, and using federal troops to secure the central post offices in those cities, takes possession of the ballots, ballots that are then destroyed for being fraudulent.
During this part of Trump’s strategy any and all of the above could be in play at once, delaying votes from being counted through fallacious court battles and state legislative obstruction. Keep in mind that in six of the most important swing states, both chambers of the state legislature are controlled by the GOP (Florida, Arizona, Pennsylvania, Wisconsin, North Carolina, and Michigan, and in Arizona and Florida, the governor is also GOP). And these six states hold 99 electoral votes. As you will see, they could all be usurped by renegade state legislatures, whatever the vote. This is most important to ACT III of Trump’s strategy.
The Plan, Act III: This Is Where It Starts Looking Like 1984
Historically, each state simply counts the vote, and in a very pro forma process the legislature (or in some states the governor) certifies the vote and designates the elector delegates for the winning candidate who then vote on December 14 in Washington. But as Gellman points out, there is nothing in the Constitution that actually states that the legislature must follow the vote of the people. This stunned me. A Trump campaign legal advisor laid out how this could unfold:
““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.”From The Atlantic: “The Election That Could Break America”
Gellman spoke with numerous Republican leaders in these states and found that all were exploring precisely this strategy. This could lead to an absurd situation with legislatures in Michigan, Wisconsin, Pennsylvania, and North Carolina having their Democratic Governors certify the actual vote and appoint the legitimate electoral college electors, then the legislatures from those states disregarding the vote and submitting to the Electoral College a contingency of Trump delegates.
There is nothing in the Constitution or in election law preventing this from occurring. Indeed, there are some advisors quoted in The Atlantic that think that barring an absolute landslide from votes counted on Nov 3, it is not just possible, but likely. This is almost what happened in 2000, as Gore’s legal advisor had booked rooms for a Gore electoral college slate from Florida and was prepared to challenge the election in Congress before Gore conceded.
So now, the Electoral College convenes to vote with competing delegates from one or more states. What next?
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.”From The Atlantic: “The Election That Could Break America”
We know what Pence would do, but in this instance everyone would be in court and both candidates would be claiming victory. According to Gellman, the experts with whom he spoke had no clue how the rest would unfold, but they had some thoughts as to how Act IV would play out.
The Plan, Act IV: A Highly Partisan Congress Decides
On January 6, the Congress is to count the delegates that have been certified and forwarded by the Electoral College. The Senate and House convene on the House floor (a most important piece). At this point, the election law is horribly vague and makes all that would transpire uncertain and difficult:
“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.”The Twelfth Amendment
But the amendment doesn’t actually say who will determine which certificates to be counted if more than one are submitted by a state.
This is where the November Senate elections come into play. Recall that on January 3, the newly elected Congress is seated. If the Democrats retake the Senate, then all paths laid out by the Electoral College Act ultimately, but not easily, lead to a Biden presidency. But keep in mind that Pence is still the President of the Senate until the inauguration on Jan. 20, and be mindful that the same challenges used against the mail-in votes for President will be used to challenge Senate and House races. The more chaos and legal challenges that occur, the better for a party that does not want all votes counted. But assume that the Senate races are either not disputed (highly unlikely) or survive those challenges and a Democratic majority takes control of the Senate. In that case, things will end well.
But if the GOP retains control of the Senate, then things get weird, and according to Gellman, there is no clear legal precedent. So what happens next could be decided by the Supreme Court (gulp).
Let’s assume that after challenges result in many swing states going to Trump due to all of the above, Pennsylvania’s 20 electoral votes decide the outcome. Now suppose that the Republican legislature has reversed a clear win for Biden and sent a Trump electoral college delegation to Congress and the Pennsylvania Governor has upheld that state’s 20 electoral delegates for Biden. It is time for the Senate to vote. Who determines which group of 20 delegates get counted.
“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.”From The Atlantic: “The Election That Could Break America”
Now, assume that Pence challenges the whole process and tosses out both Pennsylvania slates, leaving Biden in the lead, but short of 270. What now?
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.”From The Atlantic: “The Election That Could Break America”
With both Pennsylvania slates tossed, continuing the vote will result in Biden being short of the needed 270, and then the election would be determined by a vote of the House. Hold on though. The whole House doesn’t vote — each state gets one vote. That vote is based on the Party that has the most Representatives in that state. By today’s count, Trump wins 26-24, and that count is unlikely to change with the 2020 election results.
Now it gets interesting (cuz til now it is has been so dull). If the Senate is allowed to complete the count with Pennsylvania excluded, Speaker Pelosi knows that the election would then be decided in the House, and Biden would lose. Speaker Pelosi then would expel the Senators from the House Chamber, preventing the vote from being completed. While court battles ensued, Pelosi would stand firm, and by law, if no candidate achieved the vote of the Congress, Speaker Pelosi would become the temporary President on January 20. You really can’t make this up.
How this would be resolved is simply not anticipated in the Constitution or election law. It is conceivable that both Donald Trump and Joe Biden could appear on the steps of the Capitol to be sworn in. What the heck, maybe Nancy Pelosi shows up too, just to make it interesting. In the event that the inauguration is so disrupted by federal troops, riots, or who knows what, the inauguration could not take place. And based on my understanding of Gellman’s piece, Pelosi becomes President until it is sorted out. While this could wind up in the Supreme Court (gulp again), Gellman points out that the Court may simply not want to weigh in on such an entirely political drama.
I wish I could end this neatly, but not even one of the one hundred election and constitutional law experts who convened to develop a response plan and training organized by the Transition Integrity Project, could not identify a clear solution. (See our Sept. 24 post about the Transition Integrity Project.)
Our Plan, Act I: A Biden Landslide on Nov 3.
- All of you, please go to our election strategy where you can get info on a variety of actions to take, or go directly to our GOTV strategy and our National Strategy. Whatever you do, don’t sit this one out. It isn’t just our most important election. Without a landslide, it could be our last.
- In states like NM where early in-person voting will be counted and incorporated into the Nov. 3 tally, we should vote in person and early. In NM those votes are counted the minute they are put in the voting machine. This will differ in every state, but key swing states with early voting in person are: AZ, NM, NC, FL, GA.
- In states that do not allow early in person voting but allow mail-in voting, it will be vital to understand thoroughly how and when mail-in votes will be counted. In NY for example, they count ballots received up to six days after election day if they have a postmark on or before Nov. 3. If a person lives in any of the mail-in states that do not have early voting (OH, PA, WI, MI, ME, or MN for example), voters should be absolutely certain their mail-in vote will be counted on Nov. 3. Even if the rules of the state says that they will, consider all of the above and all the efforts that will be implemented to prevent that.
- We must ensure a Nov. 3 landslide, and people in states where early votes won’t be counted by election day should do all they can to vote in person and on election day unless their risk from COVID is high.
We will continue to report on the unfolding developments, but this is what was reported by Barton Gellman. And while it reads as an almost impossibly concocted story, keep in mind, Gellman has won three Pulitizer Prizes for investigative journalism and his piece is thoroughly documented with quotes, citations of election code and the Constitution, and references to events that have occurred in plain site.
This is a long post. I did my best to condense 38 pages into what you’ve just read. We must all forge on, as the future of our nation, our democracy, and possibly our planet hangs in the balance. Keep in mind, we’ve already lost four years in our effort to mitigate climate change. We can’t lose four more. And if Trump prevails, it might not be four more, it could be 8 or 12.
But we can do this — November 3 could be a glorious day, and Jan. 20 could be the day we turn the page from the ugliest four years in US history. It depends on you and how many others you can engage in election activism. Together we can do this. Let’s make this a Biden landslide!
In solidarity and hope,
Paul & Roxanne
Categories: Election, Political Reform & National Politics