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.
As NPR notes:
“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.”
I take no satisfaction in having accurately predicted—in March of 2020—how Trump and his buddies would try to steal the election in January of 2021. Or how the Supreme Court would blow up the Environmental Protection Agency.
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 electionSix 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…https://www.rawstory.com/supreme-court-election/What is the “Independent State Legislature” theory?Wikipedia: Moore v. Harper (Case scheduled for Oct)
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In Sen. Whitehouse’s (D-RI) 7th speech on dark money and court capture, he exposes the dark money interests he says are tied to the FBI’s mishandling of the investigation on Justice Bret Kavanaugh and Christine Blasey Fords claims that Whitehouse says ultimately led to Kavanaugh being sworn in.
Tucker Carlson, Unmasked
The self-styled champion of individual liberty wants you to call government agents to punish Americans for their parenting.
Social media has so conditioned people to expect hyperbole that there’s a perverse satisfaction when a clip is truly as bad as advertised. Last night, a viral tweet claimed that Fox News’s Tucker Carlson had told his audience to harass people on the street wearing masks—and to “call the police immediately; contact child protective services” if they saw a child wearing one.
Surely, this couldn’t be a fair description; naturally, it was. Having spent the early part of the month espousing the white-supremacist “great replacement theory,” Carlson is now seeking to use the power of the state to harass and immiserate his political opponents:
Carlson delivered his rant with the combination of astonished indignation, obvious bad faith, and smug sarcasm with which he delivers everything these days, a volatile mix that makes it impossible to know when and to what extent he’s trolling. Like his fellow traveler Donald Trump, Carlson delights in making appalling statements with a straight face and then insisting he was just joking; unlike Trump, Carlson has in the past shown enough of a sense of humor that you can’t discount that possibility.
Trying to figure out Carlson’s “real” feelings is not only impossible but beside the point. Whether he’s disingenuous or delusional, many people will hear what he says and take it seriously and literally. We have several recent examples of the Fox audience being misled into believing falsehoods, including denying the reality of COVID-19 and subscribing to bogus claims about fraud in the 2020 election.
Carlson’s diatribe is a useful data point for how American conservatism has transformed, especially in the Trump era, from a movement that (at least putatively) believes in limited government to one that primarily prizes marshaling the power of the state to punish those who disagree with it. With Trump in eclipse, Carlson is the most visible face of the new conservative movement.
Although Carlson makes a lot of ridiculous claims in a short period in this clip, it is his comments about children that are most disturbing. After complaining that mask mandates imposed by the state are equivalent to living in North Korea, Carlson executes two athletic rhetorical maneuvers. First, he goes from describing mask wearing as excessive to describing it as abusive, and second, he elides the difference between a government mandate and a personal choice.
“As for forcing children to wear masks outside, that should be illegal,” Carlson sputters. “Your response when you see children wearing masks as they play should be no different from seeing someone beating a kid at Walmart: Call the police immediately; contact child protective services. Keep calling until someone arrives. What you’re looking at is abuse. It’s child abuse, and you’re morally obligated to attempt to prevent it.”
One doesn’t need a lot of imagination to game out where this is going. Some viewers will take Carlson’s possibly arch exhortations to heart. They’ll call the police and child protective services. In most cases, authorities will ignore those calls. In some cases, especially if the callers repeatedly summon police as Carlson demands, they could be charged with filing false claims; it’s a good bet that neither he nor Fox News will be there to help them if they are. In other cases, encounters will end poorly for the innocent parents involved. The news is full of examples of how police called to respond to petty or wholly imagined offenses end up gravely injuring or even killing people. (Carlson believes Derek Chauvin was wrongly convicted.)
But when government authorities fail to intervene—because, of course, no laws are being broken—Carlson’s fans may feel the moral obligation to take matters into their own hands, just like Edgar Maddison Welch, who stormed into a Washington, D.C., pizzeria heavily armed in 2016, because he wanted to prevent child abuse that he wrongly believed was occurring there. No one was hurt in that incident, though someone easily could have been. Welch spent about three years in prison.
Carlson’s argument isn’t really about masks. As he grudgingly admitted, the Biden administration had already signaled that new guidance would soon make clear that mask wearing outside is not necessary for fully vaccinated people; the CDC released that guidance this afternoon. Perhaps the change could have come faster, but conservatives have traditionally applauded the deliberate process of government, because it prevents tyranny and abuse of citizens.
Even after new guidance, some people will decide to continue wearing masks outside. Perhaps they feel more comfortable that way. People exercising sometimes extreme caution about their health is neither new or a nuisance. Perhaps they are immunocompromised, or have immunocompromised family members or friends. Ultimately, it’s none of my business or Tucker Carlson’s business why they are doing so, as long as they aren’t hurting anyone, which neither he nor anyone else has established they are.
That’s the sort of personal choice that conservatives have also traditionally defended. Though Carlson masquerades as a defender of free speech (one of several poses he’s tried on over the years), he must know that the government has no business telling citizens what they cannot wear. It is, to borrow Carlson’s analogy, like being forced to wear a Kim Il Sung pin in Pyongyang. Unlike mandates to wear masks, which stem from a public-health interest, a government rule punishing people for wearing masks during a pandemic serves no compelling interest. As for children, conservatives have long argued that families should enjoy autonomy about their parenting decisions, without undue interference from the state.
But Carlson doesn’t object to the state harassing people or exercising undue power. He delights in it, as long as the state is harassing the people he hates. The cruelty, as my colleague Adam Serwer has said, is the point. This is the lodestar of the Trump and post-Trump GOP, which values owning the libs above all—not merely rhetorically, but with the fist of government. Thus Trump asserted that he had the authority to override state and local coronavirus shutdowns (before hastily backtracking when it became clear that he had no such power). He sought to involve the federal government in decisions of colleges and universities in order to muzzle speech. And he celebrated police violence, even as he moaned that he was the victim of overzealous law enforcement.
It is tempting to read incoherence in Trump’s arguments, or in Carlson’s: How can they both be against government mandating masks, on the basis of personal liberty, and also demand that the government prevent people from wearing them? In fact, the principle is straightforward enough. Small government for me, but not for thee.