An Election That Breaks America Is Only a Matter of Time

In the coming years, Republicans are likely to make the Electoral College even more undemocratic to maintain control of the presidency. The Left must be ready to respond with mass popular resistance.

"The Election That Could Break America,” Barton Gellman’s recent article in The Altantic, set off alarm bells by outlining methods that Donald Trump may resort to in an attempt to remain in office after losing the 2020 presidential election. While the piece discusses multiple ways that Trump may attempt to challenge the legitimacy of the election, particularly notable is its discussion of a scenario in which state legislatures appoint electors to the Electoral College without regard for the election results in their respective states:

We are accustomed to choosing electors by popular vote, but nothing in the Constitution says it has to be that way. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the late 19th century, every state has ceded the decision to its voters. Even so, the Supreme Court affirmed in Bush v. Gore that a state “can take back the power to appoint electors.” How and when a state might do so has not been tested for well over a century.

Trump may test this. According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.

Americans are familiar with the practice of awarding the winner of the popular vote in each state that state’s Electoral College electors,¹ but as Gellman notes, this method of choosing electors has only been in place since the late 19th century. In fact, the “contingency plan” being discussed within the Trump campaign and the Republican Party was common practice in the first several decades following the ratification of the Constitution.

Gellman goes on to report that discussions of this plan have extended beyond the Trump campaign and their close allies in the Republican Party:

In Pennsylvania, three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign.

“I’ve mentioned it to them, and I hope they’re thinking about it too,” Lawrence Tabas, the Pennsylvania Republican Party’s chairman, told me. “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution.” He added that everyone’s preference is to get a swift and accurate count. “If the process, though, is flawed, and has significant flaws, our public may lose faith and confidence” in the election’s integrity.

These revelations are highly disconcerting despite the fact that the Electoral College already is, in its current form, an undemocratic institution with a bias towards whiter, more rural states. If state legislatures were to directly appoint electors regardless of the popular vote at the state level, the Electoral College and, by extension, American presidential elections would lose any remaining shred of democratic legitimacy.

Still, after initially reading Gellman’s piece, I was skeptical that any Republican-controlled state legislatures would attempt this maneuver in 2020. Yes, these discussions were happening, but I believed that such a brazen attempt to subvert democracy would require additional time to gain widespread acceptance in Republican circles. Moreover, state legislators would have to act quite quickly to replace their states’ electors, and in states with Democratic governors, it is unclear that they would ultimately be successful. (See Gellman’s piece for more details on how this scenario might play out.)

However, we later received more evidence that Republican legislators in Pennsylvania are seriously considering this plan:

This news should raise our estimations of the likelihood that Republican state legislators will attempt to override the popular vote in their states this year. On the other hand, it is looking increasingly likely that Trump will lose re-election by a wide margin, and these state legislators will not have much appetite for meddling with the Electoral College if it has no effect on the election outcome.

Whether or not it happens in 2020, I do believe that Republicans will try to enact this plan some time in the near future, as I stated on Twitter:

Here I lay out in greater detail why Republicans are likely to try to give state legislators direct control over the appointment of electors. If I am correct that Republicans will pursue this path in the near future, possibly as soon as this year, the Left must be prepared to respond effectively. There are no constitutional remedies to this type of attack on democracy, leaving massive public resistance outside the formal mechanisms and institutions of the U.S. government as our only recourse.

Entrenching Minoritarian Rule

In recent years, Republicans, particularly at the state level, have pursued numerous, norm-violating strategies to undermine democracy and preserve their own power. We are likely to see the Republican Party take the power to choose Electoral College electors away from voters because doing so fits this well-established pattern of activity.

For context, Republicans have maintained tremendous power disproportionate to their support with the general public. The Republican nominee for president has won the national popular vote only once since 1992, but Republicans have held the office for 12 of those 28 years. In the last 20 years, Republicans and Democrats have each controlled the Senate for a total of ten years, despite the fact that Republicans have only won the national popular vote in Senate elections in three of the ten elections during this period. Their control of the White House and Senate has also allowed the Republicans to solidify a conservative majority on the Supreme Court.

The Republican Party’s ability to control the White House and Senate in spite of popular vote losses is largely attributable to the anti-democratic biases inherent in the structures of the Electoral College and Senate apportionment. These are longstanding features of the American political system, and for this reason they contrast with actions taken by the Republican Party in recent years to change our political system in a way that further entrenches the its power and insulate it from popular backlash. In general, these actions have broken longstanding norms in American politics, but have not run afoul of the law.

The actions by Senate Republicans regarding Supreme Court nominations are perhaps the most well-known examples. In 2016, the Senate refused to consider President Obama’s nomination of Merrick Garland to the Supreme Court, ostensibly following the principle that no Supreme Court nomination should be considered by the Senate in a presidential election year.² This year, Republicans have jettisoned this principle in order to confirm Amy Coney Barrett’s nomination. And in the intervening years, Republicans changed the rules of the Senate to prevent filibusters of Supreme Court nominations in order to confirm the nomination of Brett Kavanaugh nomination to the Court.

At the state level, Republicans have pursued more egregious, but less well known, anti-democratic strategies to cement their power. Gerrymandering by Republican officials following the 2010 midterms was partially responsible for creating a pro-Republican bias in the House of Representatives; this bias allowed the GOP to obtain a 33-seat advantage in the House following the 2012 election, despite Democrats winning the popular vote by roughly 1.2%. In several states, gerrymandering in state legislatures has created even greater discrepancies between the popular vote and legislative representation than what is seen at the national level. For example, in 2018 Wisconsin Republicans received only 44.7% of the votes in state legislative races but wound up winning 64.6% of the seats in the legislature due to gerrymandering.³ Voter ID laws targeting non-white, low income, and young voters have been enacted in order to make the electorate more friendly to Republicans. In North Carolina and Wisconsin, Republicans legislators stripped incoming Democratic governors of powers before these governors could take office so that political power remained in Republican hands despite losses at the ballot box.

Taking the power to choose electors away from voters and placing it in the hands of state legislatures would represent an escalation of the tactics described above, but it would be no different in kind. It is not hard to imagine the Republican Party seeing this course of action as sensible, perhaps even necessary. If an incoming Democratic president and Congress were to promise major structural changes to American government such as an end to the filibuster, an expansion of the Supreme Court, and admission of the District of Columbia and Puerto Rico as states, Republicans may see appointment of electors by state legislatures as necessary for the survival of their party. Alternatively, the Republican Party may continue to grow more extreme its beliefs, finding itself unable to accept any government controlled by Democrats as legitimate. Several Republican congressional candidates this year have endorsed the QAnon conspiracy theory that posits that Democratic politicians are Satan-worshiping pedophiles. With such beliefs about its political rivals, why wouldn’t a political party take any actions at its disposal to cling onto power?

The indications from the Trump campaign and Pennsylvania Republicans show that we need not spend too much time speculating about the conditions that would lead to Republicans changing the method for selecting Electoral College electors. It appears that the current political circumstances suffice.

Fighting Back

As I noted at the top, the Constitution leaves the method of choosing electors up to the states and that there is ample precedent for state legislatures directly appointing these electors. Thus, there is no legal recourse available to prevent a dedicated Republican Party from pursuing this strategy to keep control of the White House.

Still, it might be possible for some political actors to apply pressure that would make Republicans think twice before attempting to overturn the will of voters in this way. State legislators would almost certainly face intense backlash from voters if they were to attempt to appoint electors in defiance of their state’s popular vote. But in states with heavily gerrymandered legislative districts, the force of this backlash would be blunted. It is also plausible that rogue state legislators wanting to pursue this plan would face pushback from the national Republican Party if the latter did not approve. National Republicans would likely fear blowback from voters nationwide if they were seen as acquiescing to state legislators’ designs to steal a presidential election. And while gerrymandering at the state level could provide substantial protection to state officials against voters’ anger, it would be harder for the Republican Party to avoid backlash from the voters at a national level. But if the national Republican Party came to see a Democratic presidency as unacceptable, there is no reason to think that they would attempt to dissuade state legislatures from stepping in to ensure a Republican victory.

In such a situation, with no effective legal or electoral remedy available, what response would be available to prevent the presidential election from being stolen? There has been discussion that states objecting to the election outcome would attempt to secede from the United States. But this is an unrealistic proposal that would pose enormous challenges, not least of which is the potential of a second Civil War, a war that the secessionists would almost certainly lose.

Luckily, there is another path that is both likelier to succeed and less prone to lead to violent conflict . Over the past decade, mass protest movements in countries around the world have succeeded in driving corrupt and unpopular leaders out of power. Following this lead, Americans should respond to an attempt by state legislatures to appoint their own electors to the Electoral College with widespread public demonstrations and civil disobedience. The Black Lives Matter protests that erupted this year following the murders of George Floyd and Breonna Taylor give a hint at the type of mobilizations that would be required, although overturning this type of Republican power grab would require activism on an even larger scale.

Everyday life would need to be disrupted for a large swath of the population. Tactics of resistance foreign to most Americans, such as a general strike, would be required to undermine the Republicans’ scheme. It would be helpful to have elements of corporate America join this resistance in a meaningful way, but executives are unlikely to show support for the protests unless pushed by their employees. Regardless of the specific form that this activism takes, it would likely need to be sustained for weeks, possibly months, in order to force Republicans to stand down.

This plan of action is by no means foolproof. We may doubt the will or ability of the American public to engage in this level of sustained activism. After all, leaders of the Democratic Party show an aversion to this type of popular resistance and would much rather prefer to work within the rules of the system. But protest movements like the Women’s March and Black Lives Matter have shown that large protest movements can materialize quite quickly outside the auspices of the Democratic Party. Even if it did materialize, there is no guarantee that mass popular resistance would work. Republicans might appoint friendly electors in defiance of the election results nonetheless, and there is not a clear path for how a settlement could be reached that would restore democratic legitimacy to the election results.

But if successful, mass mobilization would also have the potential to go beyond thwarting an attempt to steal a presidential election. A protest movement that is successful in forcing the Republican Party to stand down in this situation would potentially have the power to push for more substantial democratic reforms, such as the admission of new states, reforms to the federal judiciary, and national anti-gerrymandering legislation. I find it very difficult to imagine what our system of government will look like on the other side of an anti-democratic assault by Republicans against our presidential elections. Perhaps we are more likely to be saddled with de facto Republican control of the White House for decades as we are to see a strengthened democratic system. But considering the best case scenario and raising our ambitions is useful in so far as we are guaranteed to fall short of this outcome if we immediately reject it as impossible.

We must be clear-eyed in recognizing the threat the Republican Party poses to American democracy and the further steps they will likely take to undermine it. In preparing to fight back, we should nonetheless be willing to feel hopeful about the potential to set the country on a better course. The election that breaks America may also be the election that fixes it.

¹ Currently there are two exceptions to the general rule; Maine and Nebraska both award two of their electors to the candidate who wins the statewide popular vote. In addition, candidates receive one elector for each congressional district that they carry in each state.

² At the time, there were strong indications that had Clinton won the 2016 election, Republicans in the Senate would not have considered any Supreme Court nominee during her presidency.

³ Gerrymandering has been one case where Republicans’ anti-democratic ambitions have been constrained. In 2019, the Pennsylvania Supreme Court struck down the congressional map drawn by Republicans after 2010 as violating the state’s Constitution. However, in the same year, the U.S. Supreme Court ruled that federal courts lacked the authority to strike down partisan gerrymanders.