Thursday, September 17, 2020

Choose Your Own Nightmare

In how many states? And on what grounds in each case? Change the facts, change the outcome.
First, Barr wanting to prosecute a local mayor, and Barr being able to prosecute a mayor, "over a policy dispute," are two very different things.  Barr didn't do it because he knows he can't; because he knows he'd be thrown out of court instanter.

Now, Read past the headlines, you find the federal judge in question has already stated this suit is very close to the election. That’s a term of art, not an observation on the calendar. Courts do not determine election (Bush v. Gore notwithstanding). So courts have a doctrine of not hearing challenges close to elections, so as not to be involved in them. The court is signaling it may decline the request to issue an injunction. Read the article at the link and you’ll find two more articles where courts declined to interfere with election conduct (they were on my phone when I wrote the first draft of this, they don't show up on my computer now.  Such is the internet as a source of information). The GOP may want to replicate 2000 across the country, but change the facts change the outcome. Trump doesn’t have James Baker in his team this time. Believe me, that makes a difference. There’s also the ghost of Bush v. Gore haunting the proceedings. As I said, the courts don’t like to interfere in elections. They know what it does to their reputation.

Could this scenario occur?  Some sort of nightmare a la 1876?  Maybe.  Anything is possible.  But that scenario requires a problem in one state upon which the election turns.  A 2000 scenario redux, in other words.  Per at least this map, that isn't likely to happen:

Per that map, Pennsylvania is already in the Biden camp.  But pull it out and replace it with, say, Florida, and Biden wins.  Drop Pennsylvania and replace it with Texas (still viable, IMHO), and Biden wins.  This is a "Choose-Your-Own-Adventure" game.  Change the facts, change the outcome. In the Atlantic article it comes down to Pennsylvania because of problems counting primary votes in June.  Are those problems solved?  Did Pennsylvania learn from that what do to now, in the continuing situation of the pandemic?  Why assume that?  Assume disaster.  Of course, New York had similar problems, but who cares, New York has a Democratic governor and legislature (they verify the electoral slate).  Pennsylvania could push through a Republican slate under their Republican governor and legislature.  Nightmare!  Well, maybe.  But if Pennsylvania doesn't count for the whole ball game because Florida, or just North Carolina/Arizona/Nevada (all likely to go for Biden, IMHO), PA doesn't matter anymore; nor does Florida.

Choose your own nightmare, but don't foist it on the rest of us.  This is a game among the Twitterati, a bunch of law professors getting together to draw long faces and predict the worst possible outcomes.  Yes, our electoral process is a mess, and yes, we could solve this by just getting rid of the damnable electoral college (it's a joke and a disasater).  We started this country with the state governments choosing their Senators; we finally went to direct election on that.  We need to go to direct election of our President, too.  This constant scramble to put the jigsaw together again is proving completely untenable for the state of the Republic.

Even Bush v. Gore wasn't this ridiculous.  There the Supreme Court stepped in because of the Electoral Count Act deadline.  It didn't "decide" the race so much as enforce very old and arcane law. It was the electoral college that decided the race.  Could we have another 1876 situation?  If you think that at all likely, just browse the Wikipedia entry on the subject.  No, it's not the last word, but it does illustrate the sheer complexity of the issue.  To put it in context:

An informal deal was struck to resolve the dispute: the Compromise of 1877, which awarded all 20 electoral votes to Hayes; in return for the Democrats' acquiescence to Hayes' election, the Republicans agreed to withdraw federal troops from the South, ending Reconstruction. The Compromise in effect ceded power in the Southern states to the Democratic Redeemers, who proceeded to disenfranchise black voters thereafter.

Four Southern states delivered electoral certificates which were very questionable reflections of the popular vote (South Carolina alone reported 101% voter turnout).  Colorado, which had just entered the Union, selected its electors by legislation, the first and last time what was ever done in U.S. history.  And on and on.  The scale of corruption in the South was not surprising:  it was the Reconstruction era.  Reform movements of the 20th century (civil service, etc.) had not yet established the norms we expect from our public officials today.  Yes, there is corruption; but on the scale necessary to create another 1877 compromise?  Doubtful.  Can the GOP create such a situation through legal challenges in several states?  Again:  doubtful.  The Supreme Court shut down the Florida recount because of the legal requirement for a vote count finished 41 days after Election Day. Can the GOP throw the process into such disarray it falls into the Congress to decide?  Well, maybe; but then, the next Congress may well be dominated by Democrats.  If it drags on until January 21, Nancy Pelosi, newly re-elected Speaker of the newly elected House, becomes President until a decision can be reached.

Here, for example, is a cutoff date on appointing electors (this law dates to 1948, btw, at least in latest revision):

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
The long and short of it is, states have six days "prior to said time of meeting of the electors," to decide who the electors shall be.  That's not the law per se, but is the kind of law, Bush v. Gore was enforcing.  Yes, there are ways legislatures could appoint electors, but that can only happen under very particular circumstances that even Florida didn't try to commit in 2000.

 Never say never; but don’t bet on apocalypse, either.  I don't like Trump either, but there's no reason to be as goofy as this guy:

“For me, it’s more like Trump risked his entire life to stand up for the country,” said Feeley, who works as a contractor. “He didn’t need money. … He didn’t need fame.”

He was asked what he would do if Trump loses in November: “I’m still flying it. And I’m heading to the White House with the militia.”

He'll get as far as the barricades, unless Trump has taken those down by then.  In which case, he'll get as far as the fence.  Oh, and about all those Trump flags on boats:

Craig and Lisa Terry were celebrating their anniversary anchored in nearby Hurricane Pass under a “Trump: No More Bulls--t” flag, ice clinking in their cocktails. Despite their flag, Craig Terry, who owns a construction business, said he would never wear a Trump shirt or display a bumper sticker or yard sign at home in High Springs.

The water, however, is “neutral ground” where, he said, you can fly your Trump flag and “you don’t have to fear for your business. You don’t have to fear for your neighborhood.”

Terry, lounging in his Pabst Blue Ribbon swim trunks, said repeatedly his flag is not so much about “loving Trump,” the man, specifically. He talked instead about wanting to signal the things he’s against, laying out grievances with Black Lives Matter, the media and liberal “movements.” Lisa Terry said the Trump flag is an especially great way to make friends on the water.

Nearby, another couple lazed in the warm, waist deep water and talked about only flying their Trump boat flag when certain family members are around — just to annoy them.
Rather like the claims of joining "militias" to "defend Trump:"  It's all about owning the libs.  Leave nightmares in your sleep, where they belong.  Don't fear the future:  make it.  Vote.  Support candidates.  Pay attention to the idiots, but don't give them power.  They don't know how to use it.
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