Worst-casing the post-election mischief

It's always smart to know in advance what the worst path looks like

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One can always be surprised. This is normal and forgivable.

But to be shocked? To utter the words I had no idea it could turn out like this?

That is unforgivable in a free society.

This is where scenario-planning is most powerfully good in its impact: the elimination of debilitating shock.

So we turn to this great piece by Politico: The Very Real Scenario Where Trump Loses and Takes Power Anyway.

Put aside the very low probability (but not impossible) situation where both Trump and Harris get 269 electoral votes. That’s basically the legit way the race gets tossed into a House likely to favor the GOP in a one-state/one-vote election.

With Nebraska recently resisting Trump’s pressure on its practice of divvying up of its electoral votes, thus allowing Omaha to generate one vote for Harris, the odds of that tie outcome got a lot lower.

Whew! Am I right?”

And yet … there are other sorts of illegitimate ways to trigger the same mechanism.

Politico’s scary judgment:

Not only could Trump make a second attempt at overturning an election he loses, he and his allies are already laying the groundwork.

Frankly, the closer call was probably in 2020, in retrospect, because Congress tightened up the process considerably in response to the 6 January events.

In 2022, Congress enacted the Electoral Count Reform Act of 2022 (ECRA), which clarified procedures outlined in the original Electoral Count Act of 1887. That previous law was outdated and exploited for its various weaknesses in 2020.

Key bits:

• The Veep is clearly denied any authority to toss out outcomes, votes, etc. History thanks Pence for his actions in 2021.

• You now need at least 87 House member and 20 Senators to challenge a state’s slate of electors. The old rule was just one member from each chamber.

• States cannot change election laws once voting has started.

• Any disputes over electors go to the courts and not Congress.

• The dispute process regarding elector certifications was cleaned up.

All good stuff, and yet, as the article argues, stuff can still happen.

My best guess is that Harris wins the popular vote and wins a very narrow 276-vote electoral college (Blue Wall plus Nevada), meaning it wouldn’t take much to gum up the works (Nevada tips red and Harris is at 270—268). It also means Trump’s only avenue would be to ultimately get the election tossed into the House, where he likely prevails 26-24 (although that is far from certain, we all know the electoral bias, which is there for a very Project 1619 reason).

The best news? Trump isn’t president right now, meaning …

Overturning a Kamala Harris victory would require an enormous amount of help from Republican power brokers in statehouses and Congress, some of whom spurned him four years ago.

The bad news? The pathway for his illegitimate win is clear enough to describe in advance, per Politico’s polling of experts.

It goes like this:

— He will deepen distrust in the election results by making unsupported or hyperbolic claims of widespread voter fraud and mounting long-shot lawsuits challenging enough ballots to flip the outcome in key states.

— He will lean on friendly county and state officials to resist certifying election results — a futile errand that would nevertheless fuel a campaign to put pressure on elected Republican legislators in statehouses and Congress.

— He will call on allies in GOP-controlled swing-state legislatures to appoint “alternate” presidential electors.

— He will rely on congressional Republicans to endorse these alternate electors — or at least reject Democratic electors — when they convene to certify the outcome.

— He will try to ensure Harris is denied 270 votes in the Electoral College, sending the election to the House, where Republicans are likely to have the numbers to choose Trump as the next president.

This is the potential payoff of Trump destroying the GOP’s faith in elections these past nine years — a long con to be sure but hardly inconceivable.

The fascinating wild card is, of course, that Harris herself presides over the electoral tally in the Senate. But we’ll get to that in a moment.

This all starts with the obvious trigger: Trump declares himself the winner on election night based on his actual wins and his declarations that his state losses are rigged and false.

Diving into the scenario path a bit more to locate this component scenario:

A key swing state takes several days to finish counting votes. Harris edges Trump by a few thousand ballots, appearing to clinch the election. Trump then blankets the state with ads exhorting officials to “stop the steal,” sends top allies to rail daily outside counting facilities about a crooked process, files a blizzard of litigation urging judges to throw out ballots being counted after Election Day and spreads claims that the vote was swung by non-citizens. Threats rain down on election officials and vote counters, with protests driving up the local and national temperature. Then, Trump allies on a handful of county election boards resist certification, threatening to disenfranchise thousands of voters and disrupt the state’s effort to finalize an accurate count.

This is widely anticipated by swing states, the good news being that, “in every swing state, election officials can go to court to force rebellious county officials to certify the results.”

But that will take time. Trump won’t launch all these lawsuits to win but to clog things up and sow doubt and anger among his ranks.

In the meantime … the fight will shift to the state legislatures:

Republicans control both chambers in Arizona, Georgia, North Carolina and Wisconsin. Pennsylvania’s legislature is split, but both chambers are in play this November — and new members take their seats on Dec. 1, right in the middle of the transfer of power. All told, those states control 72 electoral votes, more than the margin of all but one election since 2000 — and almost certainly enough to tip the scales in 2024.

The great unknown here is the willingness of state GOP legislators to go down this route of effectively invalidating the election results and attempting to formally anoint Trumps slates of electors. That didn’t happen in 2020, even as those fake slates were put together on the side.

Say they had been formally authorized by GOP-led state legislatures in 2020: could Pence have then tried to invalidate the electoral count?

There is real uncertainty as to what Trump may try at this key juncture:

This year, if Republican-led legislatures appoint alternate electors, then pro-Trump slates could move ahead to Congress alongside the pro-Harris slates approved by governors. (Five of the seven swing states have Democratic governors. And in a sixth state, Georgia, Republican Gov. Brian Kemp resisted Trump’s efforts to overturn the state’s results in 2020.)

Here we bump into the surreal bit about Harris presiding over the Senate at this key certification point:

That would be a direct challenge to the post-Jan. 6 effort intended to prevent this kind of constitutional clash. In 2022, Biden and Congress passed a law reforming the Electoral Count Act of 1887, intended to clarify that only governors — not legislatures — are empowered to send certified slates of electors to Congress, unless a court steps in to override the results. Harris has pledged that when she presides over the counting of presidential electors on Jan. 6, 2025, she will follow this law. But if any legislatures send her an alternate slate, there is an open constitutional question (emphasis mine) as to whether she must also offer it to Congress for consideration. What Congress would do with the slates backed by legislatures is equally uncertain, but their very existence would cast a cloud over the proceedings and, like everything else, fit neatly into a Trump pressure campaign.

And maybe that is where the Trump-dominated SCOTUS comes to his rescue like it did with Bush in 2000?

But this is where the legal proceedings against such shenanigans in 2020 may well pay off. Players now know they can be charged, convicted, and sent to jail over such trickeration.

If so, then that leaves us, per Politico, with the remaining threat that individual electors will go gonzo when the time comes to cast their votes, particularly if those people are severely pressured and threatened by Trump’s bullies.

In effect, that is when Trump is forced to attempt another 6 January campaign — just in December and distributed across the country on the 11th, or the deadline for submitting the Certificates of Ascertainment to Congress. How many states would be in play then?

After that, the fight shifts to the real 6 January procedures.

This is when the question of which side controls which chamber matters a whole lot.

Politico’s warning:

If Republicans retain the House and affirm their grip on key state legislative chambers in the swing states, a slim and dangerous path remains.

The fear here is that (1) enough state legislatures are pressured into approving Trump elector slates, (2) the GOP retains the House (or delays a Dem majority with election lawsuits), and (3)maybe it all comes down to whatever Speaker Mike Johnson is willing to do on Trump’s behalf?

Now assume Johnson retakes the gavel. Though Harris will preside, the session occurs in Johnson’s chamber, where the speaker holds significant sway.

Things are arguably fuzzy here:

If Johnson believes … that the laws governing the joint session are unconstitutional, he could assert unprecedented authority to affect the process — all under the guise of following the Constitution. That could include taking steps to ensure that pro-Trump electors embraced by state legislatures get an up-or-down vote, even if they conflict with slates endorsed by governors. It could include permitting hours of floor time to air theories of voter fraud, while holding the presidency in limbo. It could also include lobbying allies to reject pro-Harris electors in order to prevent either candidate from receiving 270 Electoral College votes. And it could also include simply gaveling the House out of session to prevent the joint session from continuing. Each move would likely trigger intense legal battles, putting the courts — and most likely the Supreme Court — in the position of deciding how to resolve unprecedented power plays by the most prominent actors in government.

And so then we’re back to the pro-Trump SCOTUS.

The whole point of this drill would be to deny Harris an electoral count of 270 or higher. The longer that goes on, the “better” the case for throwing the election into the House.

That has happened two times in US history, both times under very different legal circumstances.

Back in 1800 we were still operating under the ruleset of the runner-up becoming VP.

This is the one Trump would aim to replicate: overturning an electoral win.

The summary judgment, then?

I would say the following: If faced with the 1824-like contingent election scenario, Trump would indeed have a plausible path to victory due to favorable state delegations and fierce party loyalty among Republican representatives. Everything depends on the political climate at that moment and how effectively Trump rallies support within the House.

As for the political climate, expect several foreign governments to be amped and ready to exploit this moment. And with Trump facing jail, he is totally incentivized to go down fighting to the last.

So, no, none of this scenario-izing is off limits. It is far better and more healthy for it to be all out in the open, which Politico did a nice job of doing in this excellent piece of analysis.

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