President Donald Trump delivers his acceptance speech for the Republican presidential nomination on the South Lawn of the White House Aug. 27, 2020 in Washington, DC. | Chip Somodevilla/Getty Images
President Donald Trump has repeatedly refused to commit to a peaceful transfer of power if he loses the election in November.
In answer to a reporter’s question last week, Trump doubled down on his attack on election integrity, particularly mail-in ballots, which the president insists, without evidence, are a vehicle for voter fraud.
“Get rid of the ballots and you’ll have a very peaceful — there won’t be a transfer, frankly. There will be a continuation,” Trump said, changing tack mid-sentence to suggest a transfer of power won’t be necessary, since he plans to remain in office.
Trump has also said that the Senate needs to rush confirmation hearings for Justice Ruth Bader Ginsburg’s successor on the Supreme Court because he believes the outcome of the election will be decided by the Court.
All of this is surreal, unprecedented and extremely worrying. Is America sliding into autocracy?
Just to add to the worry, The Atlantic published a long article by staff writer Barton Gellman recently with the headline, “The Election that Could Break America.” He spun out scenarios in which Trump could hold onto power, even if he loses, by sowing chaos and undermining democratic norms — with the help of Republican legislators in swing states.
Could Wisconsin be the scene of the ultimate GOP power grab?
“We are accustomed to choosing electors by popular vote, but nothing in the Constitution says it has to be that way,” Gellman writes. “Article II provides that each state shall appoint electors ‘in such Manner as the Legislature thereof may direct.’”
“According to sources in the Republican Party at the state and national levels,” Gellman asserts, “the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority.”
As many of us have to relearn every four years, the next president is not actually chosen on Election Day. Instead, states must choose their electors by December 8 and the Electoral College doesn’t meet until December 14.
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Gelling forecasts a nightmare scenario with allegations of fraud and disputed results: “Rival slates of electors could hold mirror-image meetings in Harrisburg, Lansing, Tallahassee, or Phoenix, casting the same electoral votes on opposite sides,” he writes. “Each slate would transmit its ballots, as the Constitution provides, ‘to the seat of the government of the United States, directed to the President of the Senate.’ The next move would belong to Vice President Mike Pence.”
You can see where this is going.
Gellman’s vision of democracy’s breakdown and a stolen election begins with Republican-dominated legislatures, like ours.
Republican legislative leaders could decide to ignore the will of the people and select mostly GOP electors even if their states go for Biden, Gellman warns. Their excuse for taking things into their own hands would be doubt and disarray in the election results, especially if an apparent Trump victory on Election Day is eroded and Joe Biden wins based on mail-in votes that are tabulated later — in the days and weeks after the election — leading to challenges and accusations of fraud.
It’s not impossible to imagine that Wisconsin’s GOP legislative leaders — beneficiaries of one of the most shamelessly partisan gerrymandered maps in the nation and authors of relentless attacks on the powers of our Democratic governor, attorney general and legislators — could help Trump subvert the will of the people.
Assembly Speaker Robin Vos’ office did not respond to multiple inquiries about whether the speaker would support the Legislature choosing electors if the result of the Nov. 3 presidential election in Wisconsin is unclear.
But Rick Esenberg, founder, president and general counsel for the Wisconsin Institute for Law & Liberty (WILL), which has represented the Republican legislative leaders in multiple lawsuits challenging Gov. Tony Evers’ authority, as well as leading the effort to purge tens of thousands of voters from the rolls, points out that under state law, “We have slates of electors pledged to the various presidential tickets and a vote for that ticket is a vote for the electors pledged to that candidate.”
Furthermore, in Wisconsin, the winner in each voting precinct is determined by the Wisconsin Elections Commission and certified by the governor. “I read this to mean that neither the Legislature nor the governor has the power to decide who won. This has been delegated to WEC,” Esenberg says.
But what happens if the WEC, which is evenly split between partisan appointees, can’t agree on the winner?
“I think that the most likely result — and the correct one under existing state law — is that the question of who is right gets taken to state court,” says Esenberg.
So then the question becomes, would Wisconsin’s conservative-dominated Supreme Court support Trump’s bogus claims of voter fraud and help subvert the election?
Attorney Lester Pines, who has frequently argued opposite Esenberg and WILL on behalf of Democrats and voting-rights groups, doesn’t think so.
“You’d have to have a level of corruption that right now doesn’t exist here,” he says. “I just don’t see that happening.”
Pines also points to the language of the Wisconsin statute that specifically states that the popular vote determines how electors are chosen:
“A vote for the president and vice president nominations of any party is a vote for the electors of the nominees.”
“Theoretically, if there was a Republican governor and a Republican Legislature, they could pass a law and change the statute to say electors shall be chosen by the Legislature,” says Pines. “But that can’t happen in this state, because we have a Democratic governor and there’s not a veto-proof majority in the Senate.”
Pines also points out that ballot counting is a decentralized process in Wisconsin. Elections officials in each precinct count absentee ballots throughout the day on Election Day, even while in-person voting is going on. This means results come in relatively quickly and — unlike in Florida in the 2000 election — all the absentee ballots cannot be held up as they are painstakingly reviewed at a central processing location.
In Wisconsin, in order to disrupt the election and muddy the results, operatives would have to go to individual polling places around the state and challenge individual voters — a very cumbersome project.
There remains the creepy possibility of voter intimidation, as well as a total rejection of the outcome not just by Trump but by the rightwing conspiracy nuts he is stirring up with his frequent comments about “massive cheating” in a “rigged” election that is a Democratic “scam.”
The president’s comments raise the surreal prospect that he might try to call on the military and even freelance armed militia types to protect his power.
“What Trump has talked about in terms of people taking up arms — I actually think anyone who talks with him about that is committing a felony,” says Pines. That felony is sedition.
Sure enough, Wisconsin Statute 946.03 states: “Whoever does any of the following is guilty of a Class F felony:
(a) Attempts the overthrow of the government of the United States or this state by the use or threat of physical violence; or
(b) Is a party to a conspiracy with or a solicitation of another to overthrow the government of the United States or this state by the use or threat of physical violence; or
(c) Advocates or teaches the duty, necessity, desirability or propriety of overthrowing the government of the United States or this state by the use or threat of physical violence with intent that such government be overthrown.”
It’s a measure of just how crazy times are that following mainstream Republican politics requires brushing up on the definition of sedition.
The good news is, Wisconsin is unlikely to play a part in The Atlantic’s doomsday scenario.
The bad news is, there’s no telling what Trump might try between now and Jan. 20.
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