In the latest episode of the Lawfare podcast, Benjamin Wittes, Molly Reynolds, and Scott R. Anderson discussed potential scenarios for Banana Republicans to override the vote of the American people in the 2020 presidential election. I alluded to this yesterday but thought it deserved a fuller discussion. The bottom line is that, while mischief is possible, a coup is extraordinarily unlikely . . . but only because the House of Representatives is controlled by Democrats and not Republicans.
It all comes down to the application of the Electoral Count Act of 1887. If you want to read up on it, there is a good summary here. Here is the heart of how it works if there is an objection to the slates of electors submitted by the states:
“Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours,” the CRS said. “The two houses then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded.”
Mo Brooks is already on board to object from the House. All he needs is one partisan clown from the GOP Senate to join him in a signed, written objection. In my view, he has a handful of potential fascists to choose from who are likely to be willing to make such an undemocratic move: Ted Cruz, Josh Hawley, Ron Johnson, or Rand Paul, possibly among others. Incredibly, it apparently takes only a majority vote of each body to sustain the objection, in which case Congress can choose an alternate set of electors.
A majority vote of Congress is all it would take to overrule the collective decision of some nearly 150 million voting American citizens.
That will not happen — again, because the House is controlled by Democrats. But what if it weren’t?
By the way, the sort of insanity that could result in an objection on January 6 is not unique to Republicans. It’s not like Democrats are inherently people of better character. It’s just that Republicans happen to be the fascists this time. But students of history will remember that in 2005, Barbara Boxer joined some stooge from the House in raising an objection based on fever-swamp conspiracy theories about Diebold and Ohio. “The House denied the objection in 31-267 vote, and the Senate denied it in a 1-74 vote.”
There are those who will tell you that there is no danger that Congress would rubber-stamp such a theft of the election, and they support their case by pointing to the fact that Mitch McConnell — who congratulated Joe Biden shortly after Vladimir Putin did — has thrown cold water on the notion, and several GOP senators have said they would not engage in such a ploy. How reassuring is that, when we know that Congress is controlled by Democrats? How confident would you feel that they would do the same if they knew that a GOP-controlled House would vote to accept an alternate slate of Trump electors from battleground states?
After watching the impeachment vote, I am not confident at all.
Americans will not have to take to the streets, like Ukranians did in the Orange Revolution of 2004, in a show of force designed to insist that the person they actually elected will be the one who takes office. But the only reason I can say that with any degree of confidence is because Democrats control the House. If Republicans held the House, I worry that these soulless power-grabbing opponents of democracy would actually try to execute a coup.
This statute needs to be amended. The precedent has been set, and future “populists” have a ready-made playbook for a coup: inventing a claim of fraud as a transparent pretext to seize power. All they need is both houses of Congress under their control, and for every member of those bodies to vote on a party line, and the American experiment would be dead.
It’s not that implausible, in the era of Trump. It has to be changed.