Six Republicans on the Supreme Court just announced—a story that has largely flown under the nation’s political radar—that they’ll consider pre-rigging the presidential election of 2024.
Republican strategists are gaming out which states have Republican legislatures willing to override the votes of their people to win the White House for the Republican candidate.
Here’s how one aspect of it could work out, if they go along with the GOP’s arguments that will be before the Court this October:
It’s November, 2024, and the presidential race between Biden and DeSantis has been tabulated by the states and called by the networks. Biden won 84,355,740 votes to DeSantis’ 77,366,412, clearly carrying the popular vote.
But the popular vote isn’t enough: George W. Bush lost to Al Gore by a half-million votes and Donald Trump lost to Hillary Clinton by 3 million votes but both ended up in the White House. What matters is the Electoral College vote, and that looks good for Biden, too.
As CNN is reporting, the outcome is a virtual clone of the 2020 election: Biden carries the same states he did that year and DeSantis gets all the Trump states. It’s 306 to 232 in the Electoral College, a 74-vote Electoral College lead for Biden, at least as calculated by CNN and the rest of the media. Biden is heading to the White House for another 4 years. Until the announcement comes out of Georgia. Although Biden won the popular vote in Georgia, their legislature decided it can overrule the popular vote and just awarded the state’s 16 electoral votes to DeSantis instead of Biden.
An hour later we hear from five other states with Republican-controlled legislatures where Biden won the majority of the vote, just like he had in 2020: North Carolina (15 electoral votes), Wisconsin (10), Michigan (16), Pennsylvania (20) and Arizona (11).
Each has followed Georgia’s lead and their legislatures have awarded their Electoral College votes—even though Biden won the popular vote in each state—to DeSantis.
Thus, a total of 88 Electoral College votes from those six states move from Biden to DeSantis, who’s declared the winner and will be sworn in on January 20, 2025.
Wolf Blitzer announces that DeSantis has won the election, and people pour into the streets to protest. They’re met with a hail of bullets as Republican-affiliated militias have been rehearsing for this exact moment and their allies among the police refuse to intervene.
After a few thousand people lay dead in the streets of two dozen cities, the police begin to round up the surviving “instigators,” who are charged with seditious conspiracy for resisting the Republican legislatures of their states.
After he’s sworn in on January 20th, President DeSantis points to the ongoing demonstrations, declares a permanent state of emergency, and suspends future elections, just as Trump had repeatedly told the world he planned for 2020.
Sound far fetched?
Six Republicans on the Supreme Court just announced that one of the first cases they’ll decide next year could include whether that very scenario is constitutional or not. And it almost certainly is.
Article II, Section 1 of the Constitution lays out the process clearly, and it doesn’t even once mention the popular vote or the will of the people:
“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… [emphasis added]
“The Electors shall meet in their respective States, and vote by Ballot for two Persons … which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President…”
It’s not particularly ambiguous, even as clarified by the 12th Amendment and the Electoral Count Act of 1887.
Neither mentions the will of the people, although the Electoral Count Act requires each state’s governor to certify the vote before passing it along to Washington, DC. And half of those states have Democratic governors.
Which brings us to the Supreme Court’s probable 2023 decision. As Robert Barnes wrote yesterday for The Washington Post:
“The Supreme Court on Thursday said it will consider what would be a radical change in the way federal elections are conducted, giving state legislatures sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for congressional seats.”
While the main issue being debated in Moore v Harper, scheduled for a hearing this October, is a gerrymander that conflicts with North Carolina’s constitution, the issue at the core of the debate is what’s called the “Independent State Legislature Doctrine.”
It literally gives state legislatures the power to pre-rig or simply hand elections to the candidate of their choice.
“The independent state legislature theory was first invoked by three conservative U.S. Supreme Court justices in the celebrated Bush v. Gore case that handed the 2000 election victory to George W. Bush. In that case, the three cited it to support the selection of a Republican slate of presidential electors.”
That doctrine—the basis of John Eastman and Donald Trump’s effort to get states to submit multiple slates of electors—asserts that a plain reading of Article II and the 12th Amendment of the Constitution says that each state’s legislature has final say in which candidate gets their states’ Electoral College vote, governors and the will of the voters be damned.
The Republicans point out that the Constitution says that it’s up to the states—”in such Manner as the Legislature thereof may direct”—to decide which presidential candidate gets their Electoral College votes.
But the Electoral Count Act requires a governor’s sign-off, and half those states have Democratic governors. Which has precedence, the Constitution or the Act?
If the Supreme Court says it’s the US Constitution rather than the Electoral Count Act, states’ constitutions, state laws, or the votes of their citizens, the scenario outlined above becomes not just possible but very likely. Republicans play hardball and consistently push to the extremes regardless of pubic opinion.
After all, the Constitution only mentions the states’ legislatures—which are all Republican controlled—so the unwillingness of the Democratic governors of Michigan, North Carolina, Wisconsin and Pennsylvania to sign off on the Electoral College votes becomes moot.
Under this circumstance DeSantis becomes president, the third Republican president in the 21st century, and also the third Republican President to have lost the popular vote election yet ended up in the White House.
This scenario isn’t just plausible: it’s probable. GOP-controlled states are already changing their state laws to allow for it, and Republican strategists are gaming out which states have Republican legislatures willing to override the votes of their people to win the White House for the Republican candidate.
Those state legislators who still embrace Trump and this theory are getting the support of large pools of rightwing billionaires’ dark money.
As the highly respected conservative Judge J. Michael Luttig recently wrote:
“Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine … and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”
Trump’s January 6th effort failed because every contested state had laws on the books requiring all of their Electoral College votes to go to whichever candidate won the popular vote in the state.
That will not be the case in 2024.
As we are watching, the Supreme Court—in collaboration with state legislatures through activists like Ginny Thomas—are setting that election up right now in front of us in real time.
We damn well better be planning for this, because it’s likely coming our way in just a bit more than two short years.
The Supreme Court is laying the groundwork to pre-rig the 2024 election
Six Republicans on the Supreme Court just announced—a story that has largely flown under the nation’s political radar—that they’ll consider pre-rigging the presidential election of 2024.Republican strategists are gaming out which states have Republican legislatures willing to override the votes of t…
In his letter to House leadership, the White House counsel, Pat Cipollone, drew a line in the sand: The administration will not “participate in” the impeachment proceedings in any way. The odd language of “participate in” — presidential impeachment is not meant to be a collaboration between Congress and the president — obscures the central thrust of the letter: The White House is refusing to respond to any subpoenas or other demands for information from the House.
Of course, other administrations have fought with Congress over access to information, but those fights have centered around clearly articulated objections, supported by legal reasoning, to turning over specific documents or allowing specific officials to testify. The Trump administration’s wholesale refusal to treat congressional information demands as legitimate is so different in degree as to become different in kind.
It might seem like the White House has the House of Representatives over a barrel. If the president simply refuses to engage, what can the House do? How does a chamber of Congress go about wringing information from an unwilling executive branch?
Let’s get one thing out of the way at the outset: The answer is unlikely to be found in a courtroom. That’s not to say that the House probably wouldn’t win on the merits. Most of the administration’s arguments are risible, and even many Republican judges will have trouble swallowing them. Indeed, when the George W. Bush and Barack Obama administrations raised significantly more plausible objections to congressional subpoenas, the courts sided with the House, ordering the executive to turn over the vast majority of the subpoenaed material.
But those court battles took years. Courts could expedite proceedings to an extent, but thus far they have shown themselves in no hurry to render final judgments in these disputes. And a court “victory” coming in 2021 or 2022 is no victory at all for the House — even assuming that the Trump administration would comply with a court order when it refuses to comply with a congressional one.
So what should the House do instead? Let me suggest two ways that it can play some constitutional hardball of its own, matching the White House’s aggressive tactics.
Refusal to comply with a duly authorized subpoena from Congress constitutes contempt of Congress. Contempt of Congress is a crime, and there is a mechanism for referring such cases to federal prosecutors. The problem, of course, is that federal prosecutors answer to the attorney general and, through him, to the White House, and they refuse to prosecute contempts committed by executive officials. In recent decades, congressional houses have sought a court order requiring executive officials to comply with their subpoenas, but that has all the problems described above.
The House should instead put back on the table the option of using its sergeant-at-arms to arrest contemnors — as the person in violation of the order is called — especially when an individual, like Rudy Giuliani, is not an executive branch official. Neither house of Congress has arrested anyone since 1935, but it was not uncommon before that point (and was blessed by the Supreme Court in 1927). Indeed, on at least two occasions, the second in 1916, a house of Congress had its sergeant arrest an executive branch official. (In that case, the Supreme Court eventually ruled against the House, not because it did not have the power to arrest for contempt, but rather because the offense — writing a nasty public letter to a House subcommittee — could not properly be understood as contempt of Congress.)
Facilities in the Capitol or one of the House office buildings can be made into a makeshift holding cell if necessary. Of course, arrestees will ask the courts to set them free, but the case should be relatively open-and-shut against them: They will have committed a contempt in refusing to turn over subpoenaed materials, and the House has the power to hold contemnors. Moreover, time would work in the House’s favor here: The unpleasantness of being in custody while the issue was being litigated might make some contemnors decide to cooperate.
The House arresting someone would be explosive and clearly should not be undertaken lightly. But the very explosiveness of it would be a way for the House to signal the seriousness of White House obstructionism to the public. Moreover, having arrest as an option of last resort might also make less extreme options more palatable.
One of those less extreme options would be using the power of the purse. The government is currently funded through Nov. 21. There is nothing stopping the House from putting a provision in the next funding bill that zeros out funding for the White House Counsel’s Office. House leadership could announce that, so long as the counsel’s office is producing bad legal argumentation designed for no purpose other than protecting the president from constitutional checks, the American people should not have to pay for it.
Of course, the Senate could try to strip that rider, or President Trump could veto the bill, but if the House held firm, the administration’s choice would be to mollify the House by turning over subpoenaed information, accept the defunding of the counsel’s office, or accept the partial government shutdown that would come with failure to pass the appropriations bill.
In the end, whether the House wins that fight, like whether it wins a fight over arresting a contemnor, would be a function of which side best convinces the public. But President Trump is deeply unpopular, and the public supports impeachment. If necessary, the House should be willing to have these fights.
Antitrust investigation gives competitors chance to air complaints about Facebook’s hardball tactics
FacebookInc.FB -1.93% for most of the past decade was Silicon Valley’s 800-pound gorilla, squashing rivals, ripping off their best ideas or buying them outright as it cemented its dominance of social media.
Now the knives are coming out.
A number of Facebook’s current and former competitors are talking about the company’s hardball tactics to investigators from the Federal Trade Commission, as part of its broader antitrust investigation into the social-media giant’s business practices, according to people familiar with the matter.
One of them is SnapInc.,SNAP +0.76% where the legal team for years kept a dossier of ways that the company felt Facebook was trying to thwart competition from the buzzy upstart, according to some of those people. The title of the documents: Project Voldemort.
Snap CEO Evan Spiegel in Half Moon Bay, Calif., in February.PHOTO: DAVID PAUL MORRIS/BLOOMBERG NEWS
The files in Voldemort, a reference to the fictional antagonist in the popular Harry Potter children’s books, chronicled Facebook moves that Snap officials believed were a threat to undermine Snap’s business, including discouraging popular account holders, or influencers, from referencing Snap on their Instagram accounts, according to people familiar with the project. Executives also suspected Instagram was preventing Snap content from trending on its app, the people said.
In recent months, the FTC has made contact with dozens of tech executives and app developers, people familiar with the agency’s outreach said. The agency’s investigators are also talking to executives from startups that became defunct after losing access to Facebook’s platform in addition to founders who sold their companies to Facebook, according to some of those people.
Facebook’s Mark Zuckerberg in Washington on Sept. 19.PHOTO: ANDREW HARRER/BLOOMBERG NEWS
The discussions have focused on the aggressive growth tactics that propelled Facebook from a social network for college students 15 years ago to a collection of services now used by more than one in four people in the world every day.
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The talks are a sign that the FTC may be trying to put together “a picture of what might be a pattern of behavior to prevent competition to the core Facebook business,” said Gene Kimmelman, a senior adviser at Public Knowledge, a consumer group that focuses on tech issues who was a Justice Department antitrust official in the Obama administration. Discussions with rivals are typical in antitrust probes, said Mr. Kimmelman, who isn’t involved in the case.
Inside Facebook, senior leaders are concerned about the possibility of rivals divulging damaging information to federal officials and have discussed ways to improve the company’s relationships around Silicon Valley, according to a person familiar with the discussions.
Facebook has previously said that its acquisitions fuel innovation, rather than stifle it, and a spokeswoman said the company’s addition of new services and features over the years gives consumers more choices.
“This is competition at work and one of the longtime hallmarks of the tech sector,” she said. “Businesses continually build and iterate on concepts and ideas in the marketplace—making them better or taking them in different directions. This is good for consumers.”
The FTC investigation is one of several antitrust probes into Facebook and major tech giants in the U.S. and around the world. Earlier this month, the House Judiciary Committee requested Facebook executive communications about the company’s decisions to buy the photo- and video-sharing network Instagram in 2012 and the messaging app WhatsApp in 2014. Lawmakers have contacted several of those companies’ rivals as part of that probe, The Wall Street Journal reported previously.
The House panel can’t take enforcement actions against the companies. The FTC, however, can.
The former college student said she had been raped three times as an undergraduate at Florida A&M University, twice by students and once by an acquaintance who was on campus regularly.
She withdrew from the university and filed suit, saying that campus officials did not do enough to investigate the claims and protect her from being attacked again and again. As a precaution, she identified herself in public court papers only as S.B.
Her school fired back three times with a demand for the court: Reveal her full name or toss out the case.
For years, students have filed sexual assault complaints under pseudonyms, which allow them to seek justice without shame or fear of being targeted. Universities have generally accepted the practice.
But in two recent lawsuits — S.B.’s case against Florida A&M University and a suit by nine women against Dartmouth College — the schools have demanded that students publicly reveal their identities, going against longstanding legal practice intended to protect plaintiffs in sensitive disputes.
Experts on sexual assault cases say that these demands amount to a newly aggressive stance by universities that face potentially damaging lawsuits, and that they run counter to the spirit of federal civil rights policies. The identities of the women in both cases are known to the university lawyers, but not to the public.
“What you’re seeing in this particular case is real hardball,” said Andrew Miltenberg, a lawyer who typically represents men accused of sexual assault. “And it’s still not the way most lawyers or schools handle it. They’re a little bit more gracious about protecting someone who was their student.”
