I tried to read this last night, but I had to register (Nope! Not gonna do it.). Now I have it in tweets. Skip the handwringing and get to the nub.
The real precondition(s) is/are:
A) The Electoral Count REFORM Act; (keep it in mind), and
B) Trump is not POTUS. According to the J6 report, that made a HUGE difference in 2020-21. But that was a long government report 🥱, and level-headed analysis doesn’t make headlines.
Trump’s legal resources are split between his woes and his need to win this race. Money spent on one, is money taken from another. The zero sum game is real.
“Leveraging R’s” is the linchpin to the “be very afraid” argument. It’s a very thin reed (to toss metaphors in a blender) to lean on.
What Johnson thinks doesn’t mean jackshit. For one thing, he may not be Speaker in 2025. For a second thing, under the ECRA, Johnson can ignore it all he wants, it doesn’t matter. 1/5 of BOTH the House and Senate have to object to a slate in order to trigger a vote by each house separately, and then if the objection is upheld by each chamber, they must vote jointly to uphold it. Failure to achieve a majority at any step defeats the objection.
I guess Johnson could try to suspend procedure for an emergency appeal to the Supremes, but under separation of powers, Congress could vote to tell the Supremes to pound sand (as well as ignore Johnson, who wouldn’t have standing as an individual). Or even vote to conform their procedures to the ECRA. Either way, the Supremes can’t save Trump on J6 2025.
Now, will state legislatures go rogue?
Note the analysis presumes nobody else wants to go to jail. In 2021 participants could convince themselves Trump would pardon them when they prevailed, or that there were so many of them they’d be lost in the crowd.
Yeah, how’d that work out? And fake electors are all claiming they didn’t know it was illegal! Tell it to the judge.
So now we’re back to state legislatures. And the ECRA.
And here the ECRA is backed by the 12th Amendment. If state legislatures try to go rogue, Congress can simply reject their slates and lower the electoral threshold. Again, are the Supremes going to step in months after the fact and overturn the election? As if. They are still burned by Bush v Gore, and that didn’t overturn a settled outcome, that just enforced the ECA. Roberts is already upset by the reaction to Trump v U.S. He’s not about to vote to give Trump the election long after the fact, and completely upend the legitimacy of Articles I and II.
The “willingness to reject federal law” would require the complicity of the majority of Congress, and I really don’t see that happening.
And if a Congressional majority yields to a pressure campaign from a rogue state or two, we might as well just dump the Constitution in a shredder and declare the American Experiment a failure. Because if we can’t keep it, the Republic can’t be kept by words on parchment.📜
We return to states blocking matters and missing deadlines. The scenario of Bush v Gore, IOW. Hated that decision may be, but it set as the ground rule the ECA. The ECRA didn’t change any deadlines, just how objections are made (again, complaints about the reform rendering the statute unconstitutional are weak. And how do you present objections to the Court, without asking the Court to overturn a Presidential election?). Bush v Gore means any state that doesn’t meet the federal deadline loses their electoral votes (this is why the Court suspended the Florida recount). Which state legislatures really want to do that? (The courts won’t let state agencies do it.)
Trump declared victory in 2020. He lost 60 court cases, spawned a thousand criminal cases, and faces one himself. History is just going to repeat itself, this time as farce.
