Are you sure Trump's plan to steal the election has failed? You shouldn't be

Surely Republicans would never stage a ludicrous constitutional end-around with Brett Kavanaugh's help, would they?

Published November 19, 2020 8:00AM (EST)

Donald Trump (Photo illustration by Salon/Getty Images)
Donald Trump (Photo illustration by Salon/Getty Images)

Freddy's dead. So we are assured in pop culture by everyone from Curtis Mayfield to the "Nightmare on Elm Street" film cycle (which I might remind you now consists of nine installments, with Freddy appearing and reappearing in all nine of them). Those assurances that Freddy, Jason and their ilk are dead never work out well in horror flicks, and I wouldn't advise prematurely counting on them to work out in politics either. 

It's the classic serial killer/horror flick mistake. The monster or the killer takes a blow to the head, a steep fall or a bullet to the gut. No one could survive that, right? No need to keep an eye on the dead monster — surely he isn't going anywhere after that! No need to take the killer's gun out of his dead hand now, right? It's a done deal! No need to pump another round into the serial killer's head after an epic fight we only miraculously survived just to be certain he can't get up, amirite? Forget about it! Celebrate, good times, come on! 

I'm talking here about Donald Trump, rather obviously. He's blowing through his legal options, to be sure, as one frivolous lawsuit after another falls to the traditional legal requirement that plaintiffs produce actual evidence to support their charges. Nevertheless, while Trump's options are steadily being whittled down, there is one that remains and, despite what you have heard, is likely to remain even after all the rest have been dispatched. 

This fallback plan for Trump is the recently much-vaunted but now almost universally dismissed Electoral College strategy, which I call "Plan B" since it effectively aborts the democratic will of the people and more than 200 years of democratic consolidation in one fell swoop. Plan B involves state legislatures overriding the popular vote and choosing their own slates of electors to be substituted for the actual will of the voters in the actual election. People are usually shocked when they hear that state legislatures might be able to do this, but some legislatures did it in the early days of the republic, and in a concurring opinion on the 2000 Bush v. Gore decision, three Supreme Court justices, including Clarence Thomas, affirmed the validity of the concept. Many Republicans are talking up Plan B these days because apparently they haven't heard the news that Freddy is definitively dead. 

Many of us first heard about Plan B in the context of the 2000 election, when whispers of the plan started emanating like sulfurous gas out of a Florida swamp, only to be quickly mooted by Gore's decision to bow to what he saw as his duty to the greater good. After Gore's patriotic, if misguided, self sacrifice to the Republican gods, Plan B was safely laid to rest, never to be heard of again. Until, that is, now — especially after the publication of Barton Gellman's flashing red warning in the pages of the Atlantic in late September ("The Election That Could Break America"). 

Pre-election warnings aside, now that the networks have called the election for Biden, performative liberal triumphalism is everywhere, from Greg Sargent to Josh Marshall  to Scott Lemieux to Paul Waldman to Andrew Prokop and many more. Biden won, and it's a deal that's done. Forget about any fantastical Plan B Electoral College route for Trump to seize a second term. Can't happen. Haven't you heard? Trump's losing every single frivolous lawsuit! They're all a joke. They did a press conference at Four Seasons Total Landscape! Next to a dildo store! Why, they would have to go against the will of the people! It's all a bunch of lies, and at the end of the day, it simply isn't done

Call me a pessimist. A compulsive doom-scroller. A nervous nelly. A buzzkiller. A realist. Whatever. After decades as a Democratic strategist, working at the center of numerous national and statewide campaigns, I've simply seen too much not to be traumatized with the permanent scars of PTSD (Politically Traumatic Stress Disorder). 

I'm old enough to remember when Ronald Reagan was finally going to be held accountable for desecrating our democracy (and theirs) in Nicaragua, only to see Oliver North made into an authoritarian superstar overnight instead. I remember in 2000 when Al Gore's recount was suddenly and peremptorily halted in medias res by the Supreme Court in a shady decision that supposedly was for one-time use only but, Freddy-like, has come back to haunt us. 

I remember in 2002 when we all knew that the out-party never loses seats in a midterm election. I was deeply involved in the 2004 presidential election as a senior analyst for John Kerry's pollster, Mark Mellman. I will never forget the election-night office party when Mellman called us from CBS News studios at around 7 p.m., after the early exit polls had come out, to thank and congratulate us all for our tireless effort in what, he was then able to announce, had been our successful effort at getting John Kerry elected president of the United States. Whoo-hoo! Oops. 

I watched Hillary Clinton go into the 2016 election as the prohibitive favorite only to find out that Prohibition was definitely over. I remember when we finally had Trump dead to rights attempting to use public funding to bribe and coerce a foreign leader into helping him cheat on a presidential election at the expense of our national security and our basic principles. Surely his impeachment and conviction were a foregone conclusion, I hoped, only to watch foregone become forgone. 

So please forgive me if my PTSD prevents me from celebrating Biden's victory just yet. 

Nevertheless, despite history, we are deluged with numerous examples of the triumph of hope over experience. As we have recently been told in article after article, Republican legislators assure us, regarding the Plan B Electoral College route to Trumpian election theft, that they just wouldn't go there! They would never, ever allow themselves to be thrown into that particular briar patch. That would be outrageous. It's never been done before. It would violate state and federal law. For god sakes, man, get a grip — that would violate longstanding norms! 

But, like a blue mirage, when you examine these statements more closely, the much-touted Republican guarantees tend to evaporate into a vaporous cloud of conditions and hedges. A much cited AP article ("GOP leaders in 4 states quash dubious Trump bid on electors") quoted by Scott Lemieux, for example, in his summary dismissal of the slightest possibility of Plan B (see his blog post, "Checkmate") is illustrative of the genre. The star witness, both in this piece and others, is Jake Corman, the Pennsylvania Senate majority leader, who co-authored an op-ed with the majority leader of the state House of Representatives, Kerry Benninghoff ("Pennsylvania lawmakers have no role to play in deciding the presidential election"). In that op-ed, published a few weeks before the election, Corman and Benninghoff categorically state, "The Pennsylvania General Assembly does not have and will not have a hand in choosing the state's presidential electors." 

So, that's that, isn't it? Not so fast. That was then, in the before times, years ago, before the election happened. Everything seems different now. Once again, we've seen the abnormal gradually become quasi-normal. Now we have the unprecedented spectacle of a president rejecting the results of an election no matter what judges and election officials say, including Republican judges, Republican secretaries of state and relevant officials in his own administration. And now an entire (semi-loyal) political party, with precious few exceptions, abnormally backs up that abnormal president and his abnormal behavior. 

Listen to Corman now, in the post-election after times. Now, Corman uses qualifiers, like "Under the normal circumstances" the legislature plays no role ("No Voter fraud in Pa. election but concerns about ballots, process persist, Corman says"). But the current post-election circumstances aren't necessarily "normal circumstances," are they? We see what you did there, senator. 

And now Corman is deeply upset with the outrageous behavior of (Democratic) Secretary of State Kathy Broockvar, who had the gall to try to make sure people's votes could be counted in the midst of a pandemic. It seems, says Corman, that Broockvar "fundamentally altered the manner in which Pennsylvania's election is being conducted." There's a dog whistle for those with the ears to hear. That word "manner" may seem innocuous, but Corman's word choice there is heavily freighted with dangerous significance. 

To understand why, recall what Article II of the U.S. Constitution, the very basis of Plan B, says, "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors" (hysterical emphasis mine). Is it sheer coincidence that Corman now says, post-election, that this "manner" has been "fundamentally altered?" Gosh, I hope so. But I'm not betting the retirement account on it. 

Because according to a bogus legal doctrine being pushed by none other than Justices Brett Kavanaugh and Neil Gorsuch (full disclosure: I went to the same small high school as both or them and overlapped for a year with Kavanaugh), this Article II language, on their contrived theory, means that the state legislature and the state legislature alone makes the election rules, and any other — shall we say "alteration" — of the rules by any other political actor in the normal course of the governmental process is in strict violation of the United States Constitution. Given the prevailing, currently unusual circumstances, then, one might argue that the state legislatures have no real choice, after all, but to intervene and send their own slates of electors to the Electoral College. And it would be perfectly reasonable, would it not, if three of those state legislatures just so happened to judge that Trump is the rightful winner instead of Biden? 

So don't expect to see Sen. Corman stand idly by while fundamental principles are being trampled fundamentally, nosirree Bob! "We will follow the law," says Corman. And if the law, as interpreted and proclaimed by the United States Supreme Court — the supreme legal authority — says that state legislatures have the first, last, final and sole say-so when it comes to electors, then surely no one could object if Sen. Corman found himself duty-bound to bravely follow that law wherever Kavanaugh and Gorsuch and the rest of the hyper-partisan Republican extremists on the Court say it goes. After all, Corman has promised to do no less. 

In addition to Corman's star turn, the AP article and many like it go on to make several pertinent observations, mostly based on various implications of state law and/or Congress' Electoral Count Act of 1887. The legal issues quickly get far out in the weeds, but suffice it to say that liberals across the land see an open-and-shut case — several of them, in fact. 

For example, Trump continues his serial failure to demonstrate even a single instance of vote fraud in state courts across the land from Michigan to Pennsylvania, Wisconsin, Arizona and Georgia. What's more, some say, the Electoral Count Act of 1887 leaves the final say to Congress, not the Supreme Court. The Electoral Count Act, some note, privileges elector slates that are certified by governors (many of whom would be Democratic governors, it so happens, in the key swing states) as well as election rules that were set before the election. And the Electoral Count Act most clearly allows state legislatures a role when the election has "failed" (whatever that means) — a state of affairs which, many say, obviously does not obtain. 

Additionally, there are numerous arguments based on what philosophers call the argument from personal incredulity. Most of these arguments involve the naïve projection of the pundit's own laudable personal honesty, decency and rationality onto Republican figures who manifestly share none of those traits. 

"I don't think it will be successful. I think we are in the realm of fantasy here," says electoral law expert Edward Foley. "No, the 'Hail Mary' plan for Trump isn't going to work" says Greg Sargent, who bases most of his argument on the opinions of a Democratic state official in Pennsylvania and the fact that it seems to him "absurdly, monumentally implausible." Paul Waldman says "it would take a partisan intervention so extraordinary, so unjustified, so appalling" that he thinks it beyond the pale. Andrew Prokop says "This assertion of power would be particularly mind-boggling. … Essentially, GOP legislators would have to claim that they can wipe out state laws," the prospect of which boggles the mind far less when you consider that two Supreme Court justices have recently made that claim exactly. All those things — the Republican losses in state courts, the potential obstacles presented by the Election Count Act, the sheer audacity and indefensible nature of the idea — are favorable to the Democrats' prospects. 

And they are all, most likely, completely irrelevant. 

They are irrelevant because the way Plan B could work out — and therefore likely would work out — is a three-step process. 

First Step: the Supreme Court takes up a case, almost any old voting case will do, and regardless of the facts of the case or the ultimate verdict, sets a precedent, stating the opinion that state legislatures, completely on their own, have plenary authority to pick their own electors, as supported by the plain language of Article II. 

Second Step: Three state legislatures decide to take the justices up on their kind offer and pick pro-Trump slates of electors. Greg Sargent finds this step utterly crazy in part because "numerous states…would all have to do this extraordinarily rogue act" (emphasis his). But let's be clear on what "numerous" means here. It means "three." Personally, given all the endless radicalism and insanity I have seen over the last four years and the last two weeks, I don't find that very hard to imagine at all. 

Third Step? Game over. 

As law professor Neil H. Buchanan (recent co-author with the venerable professors Laurence Tribe and Michael Dorf) argues in a recent column ("Update on Trump's Coup: Do Not Think That This Is Guaranteed to End Well") in which he addresses the implications of the various state laws and congressional acts we have been considering, "All of those analyses, however, are based (as they should be) on existing law and precedent. Sarat and Edelman, for example, rely heavily on the Electoral Count Act of 1887. ... Whereas the U.S. Supreme Court is highly unlikely to take a case in which Trump claims that 53 votes in Pennsylvania were illegal or that Arizona voters should not have been given Sharpies, the Court would be very likely to take up a case in which they could misconstrue the Constitution, overrule precedent, and announce that the legislatures-only theory is the law of the land. Several justices have already indicated as much." 

The argument Kavanaugh has indicated he would make purports to bestow official Supreme Court-endorsed constitutional recognition upon state legislatures as having absolutely decisive unilateral power over election law — unilateral power over and above governors and secretaries of state and state courts and their rulings about state laws and over and above acts of Congress, all of which, according to the argument, come directly into conflict with the intent of the Founders as plainly delineated in the Constitution itself. That the argument is pitched at this level alone renders inoperative 95% of the arguments made for why Plan B allegedly could never work. The other 5% are based on purely pragmatic considerations, which means they are fundamentally empirical questions. We shall see. 

This essay should be taken as a warning, not a prophecy. I am not saying Trump is definitely going to succeed in such a Plan B effort, but I do think there is still abundant indication and ample reason to believe that Trump is going to try and see if Plan B can be made to work. I agree with Josh Marshall (no relation) who recently said, "Donald Trump doesn't do strategy. He does impulse. The most defining pattern of his life is to respond to reverses by seeking to throw his adversaries off balance with an audaciously aggressive play and then work it for all its worth." ("What's Going On?"). I also agree with Paul Waldman that the extreme backlash Plan B is likely to evoke makes it that much less probable that the rest of the requisite Republican players would dare go down that path. 

But given how crazy today's Republicans are, you'd have to be crazy to rule Plan B out entirely as a live possibility, as so many of my fellow liberals are doing. After all the other lawsuits have failed, Trump will find himself staring down a lifetime of irrelevance and lack of attention, with dwindling opportunities to cash in, and with the ominous threat of multiple lawsuits and maybe even jail time. 

In those circumstances, only a fool would trust that the forbearance, restraint and fundamental reasonableness of Donald Trump and the sycophantic cultists who populate his party will be sufficient to rule out availing themselves of the one remaining pathway they have to victory. They have the means, motive and opportunity, and they are unrestrained by principle. Therefore, the smart money says they may well try it. I fear they will choose to be legends. And if they try it, they will work it for all its worth, and, experience teaches us, the vast majority of the thoroughly corrupt, semi-loyal Republican Party will fall dutifully into line like good little authoritarians. 

I also agree with many legal commentators that the legislatures-alone argument is a weak one and perhaps the radical conservative majority on the Supreme Court will be reluctant to go out quite so far on such a weak limb. As Neil Buchanan notes, "there are plenty of instances in which the Constitution refers to the powers of a legislative body without actually giving that body absolute power" ("The Supreme Court Limbers Up to Aid and Abet Trump's Coup"). 

Given the plenitude of such references, if the Kavanaugh/Gorsuch argument about state legislatures actually made sense then you could just as well argue that since "Article I, Section 8 tells us that 'Congress shall have power to lay and collect taxes … to borrow money ... to regulate commerce …' and so on" by the same rationale, Congress could claim a constitutional right to act alone and could pass such laws without bothering to submit them to the president for a possible veto or to the Supreme Court for review. No one thinks the Constitution says that, and likewise no one should think it says anything like that about state legislatures either. But that doesn't mean the Republicans won't say it means that and act like it means that. 

A couple things we have learned about the Republican Party over the years: It is radical and it is radically dishonest. Pretense is as good as principle in the Republican Party, and the possibilities are endless when one is not bound by the Principle of Non-Contradiction. Those folks can be persuaded that the most insane conspiracy theory imaginable is true, and they can make stuff up entirely out of whole cloth and believe it with every fiber of their being. For those reasons, I think it premature to categorically rule out the possibility that they will attempt Plan B. And I think it would be beyond foolish to be so overconfident that Biden has this thing in the bag that we did not use the intervening time to prepare to fight any outrageous attempt to implement a Plan B with every fiber of our being. 

Such a fight would start by putting maximum pressure on the relevant state legislatures and people like Sen. Corman to stand by their country over their party and would be followed, if necessary, by the greatest color revolution this world has ever seen. People get ready.

At bottom, what I'm saying is … the killer's still lying just over yonder. We fought off almost all of his many weapons, but there is still a loaded gun in his presumptively dead hand. And I just can't take my hyper-vigilant PTSD eyes off that gun. I say we work on getting that gun out of that hand before we relax. Meanwhile, all I'm hearing is people telling me to quit worrying about it because it's all over now, and anyway, if worst comes to worst, we can always go hide over there in that garage. You know the one — it's got all those chain saws hanging in the doorway. 

By Chris Marshall

Chris Marshall was a senior analyst at several leading national Democratic polling and strategy firms, where for decades he played a central role electing and advising many governors, senators, members of Congress, state legislators, mayors and others.

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