Category Archives: 2020 General Election

2020 General Election, Democracy

The voting stops tomorrow. the counting begins. The litigation continues. And then — ?

FDR template

… I think this is a critically important election, because just think if Franklin Roosevelt had not been reelected in 1936, the whole definition of the presidency, the leader as this optimistic, rallying figure, inspiring figure, would never have come really to being into American life.

Roosevelt became the standard.

If Donald Trump is reelected in 2020, it will redefine the presidency and what Americans expect of the president and of each other. I don’t think he will be. I think Joe Biden will be elected next Tuesday, and for a whole host of reasons, that America, and especially at a time of this coronavirus, are — we are looking for a we president, and Donald Trump has been a me president.

He’s been quite incapable of addressing that, stepping up to it. He’s been on the river denial as far as the crisis itself is concerned, telling us, sort of in Pollyannish tones, that it’s going to be better, or it’s already better. We just don’t see that it’s better.

And I really think that Americans are looking for a different kind of leadership, decidedly different leadership. And I think Joe Biden represents that to them, and to a majority of them. — Mark Shields, NewsHour, October 30, 2020

Carnival presidency

“If you vote for Biden, it means no kids in school, no graduations, no weddings, no Thanksgiving, no Christmas and no Fourth of July together,” Trump said Wednesday in Goodyear, Ariz. “Other than that, you have a wonderful life.”

The Trump supporters in these crowds don’t care about the gaping holes in his arguments. They don’t mind his coarse behavior. They revel as he toggles between full-throated rage and offhanded sarcasm, exhorting and chuckling, taking selfies and videos, the consummate performer.

Trump’s glib flattery — his campaign sets up big video monitors only at important rallies, he fibs at every stop — is as authentic as professional wrestling. But crowds roar with approval at his jibes and insults, ready to deliver their lines on cue: “Four more years!” “Lock her up!” “CNN sucks!”

. . .

Trump’s final, frantic surge of rallies underscore how little the former reality TV star has changed in the White House. These carnivals of passion sustain him emotionally, but may not be enough to sustain his presidency. The narcissism could be self-defeating.

After five years of following Trump, I can hear the frustration in his words, thinly veiled by his anger and professions of confidence, the fear that he may soon become what he hates most of all — a loser. — Eli Stokols, Los Angeles Times, November 1, 2020

Not normal

… I have to agree with Larry Sabato: “Never in my 60 years around politics have I encountered this many people so tense, so full of dread and foreboding about an election — and what comes afterward. Of course, we’ve never before had a president undermining confidence and predicting fraud & mayhem — if he doesn’t win.”

That was before President Donald Trump applauded a group of supporters who attacked one of Joe Biden’s campaign buses; before it was reported that Trump plans to claim victory well before the votes are counted; before Trump’s staffers went on the Sunday shows and talked about their plans to stop states from counting legitimate ballots after Election Day; before the president talked about unleashing a blizzard of lawsuits as soon as the polls close; before he started fantasizing in public about assaulting Biden; and before Trump supporters shut down highways as part of … a protest? A threat? It wasn’t quite clear.

In other words: Before Sunday. — Jonathan Bernstein, Bloomberg Opinion, November 2, 2020

Likeable candidate

From the start of the Democratic primary, many Democratic voters prioritized electability, with plenty believing that Joe Biden was the most electable Democratic candidate in a general election against President Trump. Not everyone bought that argument …

. . .

But it is increasingly looking like Democractic primary voters might have been right about Biden’s electability argument. In the face of relentless attacks from the Trump campaign, Biden hasn’t dipped in the polls; in fact, he’s actually become better liked, and has built a formidable favorability advantage over Trump.

. . .

Sometimes the conventional wisdom, even among voters, is right. — Matt Grossman, Five Thirty Eight, October 30, 2020

Too close to call

Five Thirty Eight, November 2, 2020 — 4:30 p.m. PT — https://projects.fivethirtyeight.com/2020-election-forecast/senate/

(Image: Donald Trump accepting the GOP nomination on the South Lawn of the White House via CNBC.)

2020 General Election, Democracy, Republicans

Legal principles be damned: Republican Justices smack down the Democratic Party and voting rights

Originalism? A close reading of the text of the Constitution? Strict respect for the law as written? Nonsense. Even Chief Justice John Roberts, who has made a career of disabling the Voting Rights Act, hasn’t been on board with the consistently pro-Republican Party, anti-voting rights’ series of grotesque rationales Kavanaugh, Gorsuch, Alioto, and Thomas have adopted in case after case after case.

Harry Litman in this morning’s Los Angeles Times, after Justice Kavanaugh cited Bush v. Gore as precedent:

The deciding principle of Bush vs. Gore is generally understood to be no more than this: George W. Bush wins. Or, to be as charitable as possible toward the five members of the court who made up the majority: The ruling was necessary to stop the partisan bloodletting and chaos generated by hanging chads in Florida.
The decision was so tenuous and rushed that the justices themselves, in a stunning departure from judicial practice, wrote into the unsigned opinion that it should not serve as a precedent: It was “limited only to the present circumstances.”
Nonetheless, Kavanaugh on Monday embraced the most far-fetched theory laid out in Bush vs. Gore, in a separate opinion written by Rehnquist, who was straining to figure out a way to insert the court into the Florida mess.

Next up in the stampede to indelibly brand SCOTUS as a tool of Republican voter suppression, Neil Gorsuch, who in a dissent trampled on precedent and federalism to overrule a state supreme court ruling on the state’s constitution and statutes, as described by Mark Joseph Stern in Slate:

Gorsuch’s approach here—going over state law with a fine-toothed comb to see if the state court got it right—is a stunning assault on state sovereignty. An oddly timed one, too: It is outrageous enough to reject an unbroken line of precedent that lets states run their own elections; it’s another thing to do so six days before Election Day. The Supreme Court’s ultraconservative faction appears bent on destabilizing this election. These justices are teeing up another Bush v. Gore if the presidential race comes down to Pennsylvania or North Carolina. They have laid the groundwork to nullify late-arriving ballots on the basis of a dangerous constitutional theory that even Chief Justice John Roberts finds too extreme.

Donald Trump will soon lose the popular vote to Joe Biden by a greater margin than he did to Hillary Clinton in 2016. If all the votes are counted, Donald Trump will lose the Electoral College to Joe Biden. The slender thread his reelection hangs on is the Republican Party’s campaign of voter suppression, which Trump and the GOP hope will lead to a victory via machinations in the courts or a state legislature (or two) or Congress — not one decided at the ballot box.

A resounding Biden victory with a decisive judgment rendered by American voters will not guarantee that Republicans cannot steal the election, but it’s our best bet at this stage. Judicial rulings to stop votes from being tallied — as with Bush v. Gore — is the last thing this country needs. One stolen election in two decades is more than enough.

(Image: Brett Kavanaugh September 27, 2018, vowing revenge on Democrats:

“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups.

This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions, from serving our country.

And as we all know, in the United States political system of the early 2000s, what goes around comes around.”)

2020 General Election, Democrats, Republicans

Senator Feinstein, living in the past, misses the big picture in GOP’s rush to confirm Amy Coney Barrett

Hard to believe in October 2020, just over two weeks until election day, that a prominent Democratic senator — the ranking member, who has been in office for 28 years — is so clueless about the raw power play Republicans just made in the Senate Judiciary Committee. Senator Dianne Feinstein had this to say to Chairman Lindsey Graham:

“This has been one of the best set of hearings that I have participated in. And I want to thank you for your fairness and the opportunity of going back and forth. It leaves one with a lot of hopes, a lot of questions, and even some ideas, perhaps some good bi-partisan legislation that we can put together to make this great country even better. So, thank you so much for your leadership.”

Earlier this week, I highlighted Josh Marshall’s injunction that it was foolish to embrace the pejorative language of ones opponents — especially when it creates a false narrative that “turns the entire reality of the situation on its head.”

Joe Biden hasn’t followed the injunction. I’m sure his advisors are unconcerned about their candidate’s words on what they regard (at least at this stage of the campaign) as a small-ball issue. The Biden campaign has been a smashing success with a candidate who has hardly strayed from strategic messaging on big picture issues.

In the context of the rush to confirm a conservative ideologue to replace Ruth Bader Ginzburg on the Supreme Court, however, Dianne Feinstein’s fulsome praise of Lindsey Graham — followed by a hug, without masks — is inexcusably damning.

In 2018, when Feinstein ran for reelection, two Democrats had finished first and second in the voting in California’s jungle primary, and so faced off in the general election. The California State Democratic Party endorsed Kevin de León, the former president pro tempore of the California State Senate, over the sitting U.S. Senator. De León also received my vote. Why?

In part (speaking for myself) because Dianne Feinstein was, and is, living in the past. She is an anachronism, out of sync with contemporary politics, and willfully blind to the unwavering commitment of her Republican colleagues to scorched earth opposition to all things Democratic. The refusal of the Republican majority to even hold a hearing for Merrick Garland seems to have slipped her mind, while she willingly overlooks Republicans’ deceitful hypocrisy in doing a 180 with the Barrett nomination. (“I want to thank you for your fairness.”)

California’s senior senator recalls an era when Ted Kennedy and Orin Hatch co-sponsored legislation and when John McCain and Joe Lieberman could form strong friendships — and often bipartisan agreements — across the aisle. She remembers an era when comity and senatorial courtesy were ascendant; a time, just a year before her election to the Senate, when committee chair Joe Biden could decide to preclude calling supporting witnesses for Anita Hill because he had made a pledge to a Republican colleague in the senate gym to hurry the proceedings along.

Those were the days. Whatever we think of them, though, those days are long gone. But Dianne Feinstein still clings to them.

This morning’s Los Angeles Times reports [emphasis added]: “Polls have shown that a majority of Americans believe the winner of the election should fill the seat left vacant by the death of Justice Ruth Bader Ginsburg. Meanwhile, Republicans prominently featured Feinstein’s comments and the hug with Graham in digital ads and news releases.“

(Image: Bloomberg on YouTube.)

2020 General Election, Democracy

Senator Whitehouse tutors viewers watching at home on the dark money scheme not visible at the hearing

Describing (on day two) what was happening at the Senate Judiciary Committee hearing as comparable to a puppet theater, Senator Sheldon Whitehouse offered a backgrounder on “a $250 million dark money operation” that led to the Amy Coney Barrett nomination.

“You are not going to understand the real dynamic what is going on here, and you are certainly not going to understand forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react,” Sheldon said.

He jabs three Republican members of the committee, Senators Chuck Grassley, Ted Cruz,  and Chairman Lindsey Graham, as well as Majority Leader Mitch McConnell for their “hard-to-explain hypocrisy” (though, of course, unprincipled political opportunism and the embrace of raw political power is not all that hard to explain). He also punctures the charade that Republicans have performed each day at the hearing: that Democrats’ attention to Roe v. Wade, Obergefell, and numerous Obamacare cases is inexplicable, since Amy Coney Barrett has pledged to rule fairly, without any bias except a commitment to the letter of the law, in whichever cases she is presented with as a justice.

Senator Whitehouse and his colleagues know that the idea of Barrett as a blank slate is ludicrous, no matter how much Republicans pretend otherwise. These cases have been in the crosshairs of the conservative legal movement, the party’s conservative evangelical base, and Republican elected officials since each of the respective SCOTUS rulings were handed down. The right to abortion, to gay marriage, to affordable healthcare — even when one has preconditions that before the ACA would have precluded having health insurance — are at stake.

In each case, the GOP has fought fiercely to overturn the ‘liberal’ rulings, yet in the hearings this week, Republican senators appeared baffled at the idea that somehow confirming the Notre Dame professor as a justice would lead to any reversals, much less any real world consequences. But of course, Professor Barrett was chosen because there is in her record virtually no wavering from the party line — championed with immense infusions of corporate dollars — on any of these issues (or any others to which the GOP and its donor base are committed).

While illustrating the connections between deep-pocketed right-wing foundations, huge corporations, the National Federation of Independent Businesses, the Judicial Crisis Network, the Federalist Society, and the Trump White House, the senator explained the “scheme with the same funders selecting judges, funding campaigns for the judges, and then showing up in court in these orchestrated amicus flotillas to tell the judges what to do.”

The lesson on a very impressive, highly successful decades-long campaign by corporate interests to capture the federal courts is much more illuminating than 28 minutes of Q & A with the nominee would have been.

The transcript is available from the Center for Media and Democracy, but it’s worthwhile to watch the presentation, which included helpful visual aids.

2020 General Election, Democrats, Republicans

The phrase “Court-packing” should not be in the vocabulary of any Democratic candidate

“I’m not a fan of court-packing, but I don’t want to get off on that whole issue,” Biden told CNN affiliate WKRC in Cincinatti. “I want to keep focused. The President would love nothing better than to fight about whether or not I would, in fact, pack the court or not pack the court.”

In this response, Joe Biden used the phrases “court-packing” and (twice) “pack the court.” In doing so, he accepted, wholly, unreservedly the Republican-frame of the question of whether Democrats — if they win the presidency and the Senate — should consider changing the number of Supreme Court justices.

While this is unlikely to have a measurable impact on the trajectory of his campaign, I regard this as an unforced error.

. . . I thought I would become apoplectic when I saw that some Democrats were referring to expanding the Supreme Court as “court packing” or tacitly accepting the use of the phrase when asked about it by reporters. Any Democrat who uses this phrase should be, metaphorically at least, hit over the head with a stick.

The simple fact is that “court packing” is a pejorative phrase. It is nonsensical to use it as a description of something you’re considering supporting or actively supporting. If you decide to support a certain politician you don’t refer to deciding to ‘carry their water.’ Someone who supports expanding the estate tax doesn’t call it the ‘death tax’. This is obvious. Doing so is an act of comical political negligence. But of course the error is far more than semantic. No one should be using this phrase because it is false and turns the entire reality of the situation on its head. — Josh Marshall, the day before Biden made his comment

Although I don’t advocate hitting Biden over the head with a stick, I wish his team would have armed him with another response. The Biden campaign — like the Democrats on the Senate Judiciary Committee on day one of the hearing — has maintained superb message discipline. They lost it in this instance.

Republicans don’t use the phrase “voter suppression” to describe their electoral strategy. Or “court-packing” to describe their packing the federal courts at all levels with Republican lawyers — often regardless of their qualifications, judicial experience, or temperament — whom they expect to be ideological and partisan jurists to rule consistently against Democratic constituencies, issues embraced by Democrats, and Democratic governors and legislators.

But, in addition to conveying the simple rule, Don’t use a pejorative expression flung at you by your political opponents, there’s a more basic issue at work (just beneath the surface). Josh Marshall followed the obvious point with an elaboration that reveals a more fundamental blunder [emphasis added]:

If you decide to support a certain politician you don’t refer to deciding to ‘carry their water.’ Someone who supports expanding the estate tax doesn’t call it the ‘death tax’. This is obvious. Doing so is an act of comical political negligence. But of course the error is far more than semantic. No one should be using this phrase because it is false and turns the entire reality of the situation on its head.

Republicans have pursued an extreme agenda through corrupt means to politicize the courts. That’s the issue staring us in the face (though not, in the midst of an election campaign that will culminate in three weeks’ time, an issue that Biden must address now).

The formula was and is simple: use every ounce of raw political power to stack the federal judiciary with conservative ideologues. Refuse to consider nominations; then rush them through. No nominations within a year of an election; but quickie confirmations within a month of an election. Republicans have taken the constitutional framework and abused it to the maximum extent possible to achieve this transcendent goal. While these are almost universally abuses, none are clearly illegal or unconstitutional. At the most generous they amount to using every tool that is not expressly illegal to maximize control of the federal judiciary.

The untimely death of Ruth Bader Ginsburg in the final weeks of an election Republicans seem likely to lose has cast the whole drama in clarifying light. Republicans are now on the cusp of securing a 6-3 conservative High Court majority which will act as an effective veto on Democratic legislation using arguments no less facially absurd than the list used to attack Obamacare.

This is all the work of decades. But it is particularly the work of the last decade, 2010 to 2020. And it is all guaranteed, locked in, final on the assumption that Democrats will not even consider much milder and expressly constitutional remedies to repair the damage wrought by Republican judicial corruption. Indeed, conservatives are now reacting with something like apoplexy at the idea all this work, wrecking half the government in the process, could be voided with a simple majority vote to expand the federal judiciary and the Supreme Court. The Republican program is raw power for me, norms and prudence for you. Few things show how much Washington DC remains wired for Republican power than the idea that anyone can with a straight face call the possibility of Democrats taking some remedial action “court packing.”

Joe Biden, take notice.

(Image: Amy Comey Barrett makes her opening statement on day one via PBS/YouTube.)

2020 General Election, Donald Trump

A contagious Trump, back at White House/Walter Reed Hospital Annex, preens and postures as a strongman

NBC News via YouTube.

A sick man with access to the finest, state of the art therapies and exceptional medical doctors, returns to his residence. With all the resources of the federal government available, he is as safe and secure as if he were still tucked into a bed next to the presidential suite at Walter Reed, which is a ten-minute helicopter ride away.

Heedless of anyone else’s welfare, he has revealed (time and time and time and time and time again) — in the face of more than 210,000 American deaths and 7 million infections — his character for all to see.

(Another tell on the man’s character: Neither the White House, nor Trump’s physicians have answered questions about the President’s most recent negative test. While Trump has repeatedly claimed that he is tested everyday, that’s difficult to take at face value. The test is hardly comfortable. I suspect that the would-be strongman has been unwilling to submit to daily testing.)

Sean Hannity, a master of misdirection and duplicity, proclaims a great man — on par with Churchill and FDR.

HANNITY: Remember 1933 during the height of The Great Depression, my father was growing up in those years, on the brink of a World War. Franklin Delano Roosevelt proclaiming we have nothing to fear but fear itself. A reminder. 

[CLIP BEGINS]

PRESIDENT FRANKLIN DELANO ROOSEVELT: Let me assert my firm belief that the only thing we have to fear is fear itself. Nameless, unreasoning, unjustified terror. Which paralyzes needed efforts to convert retreat into advance. 

[CLIP ENDS]

HANNITY: And on the other side of the Atlantic — 1940 — the great Winston Churchill echoed this fearless call to action. A powerful address. Victory at all costs. Victory in spite of all terror. Victory however long and hard the road may be, for without victory, there is no survival. Remember this?

[CLIP BEGINS]

WINSTON CHURCHILL: I have nothing to offer but blood, toil, tears, and sweat. You ask, what is our aim? I can only say one word — Victory. Victory at all costs. Victory in spite of all terror. Victory, however long and hard the road may be, for without victory, there is no survival. 

[CLIP ENDS]

HANNITY: And during the bombing of Britain, where was he everyday? Going out, risking his life, being among the people of Great Britain. In times of great hardship you must fight for survival. And that is exactly what the President has done during this country’s battle against COVID-19. 

Not everyone will agree with that assessment. I suppose we might regard the campaign video Trump made immediately upon his return to the White House as a Rorschach test:

I just left Walter Reed Medical Center, and it’s really something very special– the doctors, the nurses, the first responders. And I learned so much about Coronavirus. And one thing that’s for certain, don’t let it dominate you. Don’t be afraid of it. You’re going to beat it. We have the best medical equipment. We have the best medicines, all developed recently. And you’re going to beat it.

I went, I didn’t feel so good. And two days ago– I could have left two days ago. Two days ago, I felt great, like better than I have in a long time. I said just recently, better than 20 years ago. Don’t let it dominate. Don’t let it take over your lives. Don’t let that happen.

We have the greatest country in the world. We’re going back. We’re going back to work. We’re going to be out front. As your leader, I had to do that. I knew there’s danger to it, but I had to do it. I stood out front. I led. Nobody that’s a leader would not do what I did. And I know there’s a risk. There’s a danger, but that’s OK. And now I’m better. And maybe I’m immune, I don’t know.

But don’t let it dominate your lives. Get out there. Be careful. We have the best medicines in the world. And there all happened very shortly, and they’re all getting approved. And the vaccines are coming momentarily. Thank you very much. And Walter Reed, what a group of people. Thank you very much.

A KFF poll last month revealed the remarkable faith of the Republican base — in spite of all evidence to the contrary — in Donald Trump’s commitment to preserving the ACA’s guarantee of coverage for pre-existing conditions.

https://www.nytimes.com/2020/10/01/upshot/trump-pre-existing-conditions-polls.html

Said one voter: “I truly, in my heart of hearts, believe that even though he sometimes says things I don’t like, and acts in ways I wish he wouldn’t, I still think he has everybody’s best interest at heart.”

Will the Republican base — mistrustful of the mainstream media, medicine and science, and the liberal elite — accept Trump’s coronavirus worldview? Perhaps so. But that base, by November 3, may be considerably smaller than it was in November 2016.

Time will tell.

2020 General Election, Democracy, Off the Rails, Republicans

An increasingly authoritarian GOP has a plan to steal the 2020 election for Donald Trump

President Donald Trump on the November 2020 election:

● “The only way we’re gonna lose this election is if the election is rigged. Remember that. The only way we’re gonna lose this election. So we have to be very careful.”

● “So this is a disaster waiting to happen. The only hope we have, really, other than going through a long unbelievable litigation at the end after it’s over, is we’re gonna win. We’re not going to lose this except if they cheat. That’s the way I look at it.

We can’t let ’em cheat. We can’t let ’em. . . .Our country is at stake . . . Our country is at stake, because these people will destroy our country. We can’t let this happen. And this is a scam. They know it, the media knows it, but the media doesn’t wanna cover it. They know exactly what’s going to happen and so do I. But the Democrats know better than all of us what’s gonna happen.”

● “We’re gonna have a victory on November 3rd the likes of which you’ve never seen. Now we’re counting on the federal court system to make it so we can actually have an evening where we know who wins, okay? Not where the votes are gonna be counted a week later, or two weeks later. . . .”

[Q: Win, lose, or draw in this election, will you commit here today for a peaceful transferal of power after the election?]

● “Well, we’ll have to see what happens. You know that I’ve been complaining very strongly about the ballots and the ballots are a disaster. . . .

We wanna have — get rid of the ballots and you’ll have a very trans — you’ll have a very peaceful — There won’t be a transfer, frankly. There’ll be a continuation. The ballots out of control. You know it. And you know who knows it better than anybody else? The Democrats know it better than anybody else.”

The relentless campaign to deny the integrity of the upcoming election is part of a larger Republican plan, set out in plain sight, to throw the election to Donald Trump.

In How Democracies Die, Steven Levitsky and Daniel Ziblatt describe the informal rules or norms that serve as the guardrails of our democracy, forestalling a democratic breakdown  – and a Republican Party more than willing to plow through those guardrails to gain political advantage. As the authors explain, “political leaders, and especially political parties,” play the critical roles in preserving democracy. The GOP has shunned this role.

Nearly two decades after the ascendency of Newt Gingrich, after Bush v. Gore, and half a dozen years after publication of Mann and Ornstein’s It’s Even Worse Than It Looks, no political observer in 2018 (when How Democracies Die was published) could have been surprised by the indictment of the pre-Trump GOP, and not simply of the party since Trump’s takeover.

The book, which I read in early 2019, is a warning to small-d democrats. I regarded the warning as less urgent, and the threat as less imminent, on that first reading than I do now. I recognized then that the Republican Party continued to trash democratic norms and that Trump had pushed the GOP even further off the rails, but I believed that our institutions would protect us. We were safe from the worst. We would vote Trump out of office, just as we had rejected the Republican majority in the House in November 2018.

But the Republican Party has become increasingly extreme with each year of the Trump presidency. So, the passages that I regarded as perceptive observations have become alarming portents. As our country loses prestige and influence abroad, and as the chaos at home betrays our image as the world’s greatest democracy, our democratic institutions appear less robust than they did even a short time ago.

Shockingly, today the United States of America doesn’t seem a world away from Venezuela, Turkey, or Hungary (to cite a few of the countries discussed in How Democracies Die where people still cast ballots, but authoritarians rule). The threat of a free and fair election — offering a judgment on Donald Trump’s presidency — being subverted so Trump can stay in office regardless of the will of American voters is right upon us, here and now in 2020.

Recognition of this impending threat has come in stages.

On August 19, election-law expert Richard Hasen wrote about the broad Republican strategy:

The threat to the 2020 election’s legitimacy finally broke through into everyday conversation last week. People who pay little attention to politics started talking about whether President Trump was looking to mess with the United States Postal Service to slow down the receipt of mail-in ballots.

After reports from NPR and the Washington Post (on August 22 and 23, respectively) that upwards of 500,000 mail-in ballots had been disqualified in the Wisconsin primary jolted me, on August 24 I posted, “Democrats desperately need a Plan B.” If a half million votes could be lost in a single primary, maximal Republican interference in multiple states in a general election could be much more consequential. The GOP is preparing to pull out all the stops to prevent votes from being counted (the successful strategy in Florida in 2000), so Trump doesn’t face a reckoning.

By September 10, when Ronald Brownstein wrote the essay, “Democrats Won’t Cede the Streets This Time,” the previously fantastical idea (an authoritarian leader subverting a free and fair election in the U.S.A.) was widely anticipated. Not only did Democrats expect Trump to try to steal the election, they expected Republicans to employ shock troops (as they had in the well-orchestrated Brooks Brothers’ riot of 2000) to intimidate officials responsible for tabulating votes.

Hasen’s assessment now is that the Republican Party’s plan — to muck up the works and then, when bedlam breaks out, disregard the voters and declare Trump the winner — is “a five-alarm fire” that threatens democratic rule:

With less than six weeks to go before Election Day, and with over 250 COVID-related election lawsuits filed across 45 states, the litigation strategy of the Trump campaign and its allies has become clear: try to block the expansion of mail-in balloting whenever possible and, in a few key states, create enough chaos in the system and legal and political uncertainty in the results that the Supreme Court, Congress, or Republican legislatures can throw the election to Trump if the outcome is at all close or in doubt. It’s a Hail Mary, but in a close enough election, we cannot count the possibility out. I’ve never been more worried about American democracy than I am right now.

I initially shrugged off Trump’s attacks on the credibility of the election because he had done the same thing in 2016 — even after winning (when he claimed that 3 to 5 million illegal votes had been cast, unfairly depriving him of a popular vote victory). I regarded the continuing crusade as just blather and bluster. (And it would be were it not for the complicity of the Republican Party and its leadership.)

I shrugged off Trump’s tweets about postponing the November 3 election, which I took as evidence of his insecurity (after consistently trailing Joe Biden in public polling for more than a year) and his ignorance (of the structure of our governing institutions). Moving the date of the election was not a viable possibility — and so not the way to steal an election.

I never regarded as likely the suggestion that Trump would lose the election, but refuse to budge from the White House.  That’s not where the threat lies, as Barton Gellman explains:

A lot of people, including Joe Biden, the Democratic Party nominee, have mis­conceived the nature of the threat. They frame it as a concern, unthinkable for presidents past, that Trump might refuse to vacate the Oval Office if he loses. They generally conclude, as Biden has, that in that event the proper authorities “will escort him from the White House with great dispatch.”

The worst case, however, is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that un­certainty to hold on to power.

Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand.

The linchpin: “if his Republican allies play the parts he assigns them.” Trump is Trump. He sends signals. It is his Republican allies — in Congress, on Fox News Channel, in a handful of legislatures and statehouses across the country, and at the Supreme Court — that could pull off the heist.

The Republican Party has moved unwaveringly toward a fulsome embrace of Trump’s authoritarian impulses. At every fork in the road — whether to enable Trump’s authoritarian incursions or to take a principled stand to defend democratic institutions — Republicans in the House and the Senate have chosen the former.

Consider 2020; that is, just the past nine months:

Apart from Mitt Romney (who acknowledges that he has no followers in today’s GOP), Republicans in both the House and the Senate were unanimous in refusing to hold Donald Trump accountable for his shakedown of Ukraine’s President Zelensky. This was a choice. The rejection of principle, in favor of raw political power, with the recent Supreme Court vacancy was a choice. The loudest voices among Washington Republicans have reinforced Trump’s campaign to delegitimize the election; other Republicans remain silent (implicitly standing behind Trump). Everyone — the vocal and the mute — has made a choice. Finally, the namby-pamby statements after Trump’s rejection of the principle of a peaceful transition represent a choice. (Not that a more definitive rejection from today’s Republicans, while still weeks away from the election, would count for much.)

The Republican Party has rejected Congressional oversight, Constitutional checks and balances, the rule of law, the sanctity of the vote and of democratic elections, conservative principles and policy commitments, and much else where this president is concerned. The party has collectively made choice after choice to go all-in with Trump wherever he has led.

In my August 24 post, I raised this question:

But — stop and consider for just a moment all that we’ve witnessed over the past three and a half years — are there any grounds to believe that, say, Mitch McConnell would object to a transparent theft of the election if he thought that he could get away with it?

Consider all of Trump’s enablers. Isn’t the same cynical calculation in play for each of them? If Fox News Channel and the rest of the conservative media universe were on board, nearly half the country would be convinced, if Trump claimed a victory, that Trump had won (or that McConnell had held his majority).

I would not have thought to write those paragraphs at the beginning of the year, much less in early 2019, after first reading How Democracies Die. Even understanding that the GOP was an insurgent outlier, which employed voter suppression as a primary electoral strategy, I would have regarded this contingency as a bridge too far. But here we are.

I’ve written more than once about the go-to play in the Republican Party’s game plan, which Steve Bannon described as “to flood the zone with shit.” Republicans in Washington and state capitals, on FNC and talk radio, in social media and on the streets are always prepared to flood the zone with shit. Lies, conspiracy theories, denials, misdirection, and ceaseless vilification: that’s the route to creating chaos. Republicans are amply prepared to follow their authoritarian leader if, when push to comes to shove, they think they can get away with it.

Near the beginning of Donald Trump’s term, Levitsky and Ziblatt wrote:

We know that extremist demagogues emerge from time to time in all societies, even in healthy democracies. The United States has had its share . . . . An essential test for democracies is not whether such figures emerge but whether political leaders, and especially political parties, work to prevent them from gaining power in the first place—by keeping them off mainstream party tickets, refusing to endorse or align with them, and when necessary, making common cause with rivals in support of democratic candidates. Isolating popular extremists requires political courage. But when fear, opportunism, or miscalculation leads established parties to bring extremists into the mainstream, democracy is imperiled.

Once a would-be authoritarian makes it to power, democracies face a second critical test: Will the autocratic leader subvert democratic institutions or be constrained by them? Institutions alone are not enough to rein in elected autocrats. Constitutions must be defended—by political parties and organized citizens, but also by democratic norms. Without robust norms, constitutional checks and balances do not serve as the bulwarks of democracy we imagine them to be. Institutions become political weapons, wielded forcefully by those who control them against those who do not. This is how elected autocrats subvert democracy—packing and “weaponizing” the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and renewing the rules of politics to tilt the playing field against opponents. The tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy—gradually, subtly, and even legally—to kill it.

Thus far, choice by choice, the Republican Party has failed both critical tests.

The authoritarian threat — as the country’s November election approaches — is nearer, more imminent than I had imagined just months ago. Killing democratic rule is not just an exotic foreign affair, it’s something that could happen here. The contemporary Republican Party has a plan for stealing the 2020 American election — if only a viable opportunity presents itself. It is up to democrats (and Democrats) to make sure that tabulated ballots, not chaos and chicanery triumph.

(Image: The Hill.)

2020 General Election, Democracy

For Democrats there is only one thing that matters politically now

I. Does Joe Biden take office on January 20 with a united Democratic majority in the U.S. Senate?

I’m not a political strategist or a pollster. I don’t know how the death of Ruth Bader Ginsburg, the machinations of Mitch McConnell, the calculations of Republican Senators, or whatever Joe Biden and Democrats do or say will affect the outcome of the November 3 election.

But whether or not McConnell succeeds in seating a Trump nominee between now and January isn’t as significant as what happens after January 20.

If McConnell’s gambit fails (and a Trump nominee isn’t confirmed), if Joe Biden is elected and takes office, and if Chuck Schumer becomes the majority leader, then Joe Biden will name the justice to replace Ginsburg. If McConnell corrals Republicans to confirm Trump’s nominee, if Joe Biden is elected and takes office, and if Chuck Schumer becomes majority leader, Democrats will be in a position to increase the size of the Supreme Court to 13.

What’s constant: Biden must win and Democrats must control the U.S. Senate. This is a high stakes election. Nothing has changed with the passing of an extraordinary woman with a monumental legal legacy.

II. A separate point: There is a downside to increasing the size of the Supreme Court.

The move would hardly be unprecedented, nor would it be unjustified, as Edwin Chemerinsky notes:

One way for Democrats to make clear they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that, if they take the White House and Senate in November, they will increase the size of the Supreme Court to 13 justices.

The number of justices on the court is set by federal law, not the Constitution. Since its beginnings, it has ranged from having between five and 10 members. Since the 1860s, it has remained at nine.

When President Franklin Roosevelt suggested expanding the Supreme Court in the 1930s to overcome court hostility to the New Deal, he was repudiated for trying to pack the court. But the current situation is different. This would be a response to chicanery by Republicans.

What happened with Garland’s nomination was unprecedented, and Democrats rightly believe it was a stolen seat. After Scalia’s death in February 2016, President Obama moved quickly, nominating Garland the next month.

But such a move would pose a risk to democratic governance, as we learn in Steven Levitsky and Daniel Ziblatt’s book, How Democracies Die. They warn (in Chapter 9) regarding a familiar Democratic activists’ refrain:

In our view, the idea that Democrats “fight like Republicans” is misguided. First of all, evidence from other countries suggests that such a strategy often plays directly into the hands of authoritarians. . . .

And (to cite their admonition regarding impeachment to make a more general point):

Even if Democrats were to succeed in weakening or removing President Trump via hardball tactics, their victory would be Pyrrhic—for they would inherit a democracy stripped of its remaining protective guardrails.

I get it. But in 2020, two years after publication of How Democracies Die, it’s past time to escalate the fight. Trump and the Republican party have trashed way too many guardrails to overlook. And as Trump has become more aggressively authoritarian, we have learned that for Washington Republicans no outrage is too great to accept. Their only calculation is purest power politics with no allegiance to democratic norms or values. The only reasonable option for Democrats (and democrats) is to push back within Constitutional restraints — even if it’s necessary to make basic changes, where there was formerly bipartisan agreement (such as the size of the Supreme Court or the number of states in the union).

Josh Marshall acknowledges the risk, but comes down on the right side of the issue (by my lights):

We are here because of the Republican party’s increasing unwillingness to accept limits on political action. To up the ante on that tendency, to meet it, is itself a grave threat to democratic governance. But an even graver threat is to remove any mechanism of consequences or accountability. Then there is truly no limit or disincentive to corruption, law breaking and bad action. That reality is precisely the one in which we currently find ourselves.

2020 General Election, Republicans, Short & Sweet ... Short & Sour

In Wisconsin, North Carolina, Florida: 24 hours of efforts to rig election for Trump and the GOP

No act is too brazen for the Republican majority on the Wisconsin Supreme Court. [Update: In a surprise,“the court’s newest conservative-backed member, Justice Brian Hagedorn,” shunning a party line vote, formed a majority with liberals to rule against mucking up the works.] Things didn’t turn out so well during the primary (apparently many Wisconsin voters resent the imposition of minority rule in the state). We’ll see if the latest attempt to throw a wrench into the works is a winning play by the Republicans.

Meanwhile, a federal appeals court considers whether North Carolina’s recent history of discriminatory voting restrictions, which were found to “target African Americans with almost surgical precision,” should be considered in evaluating whether another law — with the same target — should be invalidated (“Court examines North Carolina’s new law that requires photo IDs for voting”).

While in another appeals court, a 6-4 majority found that Florida’s 21st century version of the poll tax passes constitutional muster (“Florida can bar ex-felons from voting if they owe court payments, appeals court rules”).