I was slow in getting to an alarming and epic overview by Barton Gellman in The Atlantic about some of the possible scenarios if both sides are willing to go nuclear in the aftermath of the November election.
You must read it, but you won’t sleep well afterwards. Headlined: “The Election That Could Break America,” it’s here.
The summary is this: If, as seems likely at the moment, Trump loses the election by any rational reckoning, but refuses to concede, relying on his newfound and oft-repeated belief that absentee/mail-in ballots — especially those that arrive after Election Day — are inherently fraudulent or unreliable, and if enough Republicans in Congress are willing to cooperate with subverting the result by any means, they have a lot of means.
Gellman lays them out. There are many constitutional provisions and federal laws in play, but they pull in both directions. If, as seems slightly possible, Democrats have won control of both houses of Congress in November, odds favor them getting Joe Biden declared the new president.
Donald Trump, Gellman says, will never under any circumstances, concede and cooperate with a peaceful transfer of power. It’s not in him.
Assuming that even into January the current division of a Republican-controlled Senate and a Democratic House are maintained, there is no obvious way to get to a peaceful transfer of power.
You should be aware of a fairly hideous/ridiculous provision, embedded in the Constitution, that in the event no one has won the election in the Electoral College, the House is authorized to choose the president. Although the House will almost certainly have a Democratic majority, that House vote is taken on a one-state, one vote basis. Republicans actually control more state delegations than Democrats do. If everyone keeps just voting their party line, they would be in a position to choose Trump.
But Speaker Nancy Pelosi could simply refuse to allow that vote by shutting down the House, with the backing of her majority. Under this insane scenario, there would be no way to declare the election of a new president, nor to extend Trump’s term past inauguration day (January 20) and the Constitution says that in such a scenario the speaker, yes, Pelosi (assuming that Republicans have not taken over the House in the election, which no one expects) would become acting president, indefinitely, until something else is figured out, with no obvious way to figure it out.
I’ve heard that one before, but found it laughable. Now I’m not laughing. I’m fairly terrified, not at the prospect of “acting president Pelosi,” but at the prospect that our Constitution, once considered so brilliantly designed that the poet James Russell Lowell called it “a machine that would go of itself,” currently doesn’t seem to have a better answer.
The Supreme Court, which will almost certainly by then be packed into a 6-3 Republican majority, could weigh in. In fact, Trump specifically referred to the urgency of getting his latest nominee confirmed quickly, perhaps to ensure a favorable outcome for himself. Would the House, controlled by Democrats, and Acting President Pelosi accede to such a ruling?
If the story ends either of those ways, with Acting President Pelosi serving indefinitely, or with a party-line ruling by unelected justices, how close will we be to the end of democracy in America?