Blog No. 269. The Coming Trump Coup? (Part II)

In Blog No. 265, “The Coming Trump Coup?” posted on August 8, I wrote:

It may sound odd to speak of a coup by someone presently in office. But if President Donald Trump appears to be defeated in the coming November election, the prospect of an attempted coup to keep him in office is a realistic possibility. Trump has voiced endless attacks on mail-in voting that foreshadow more of the same on and after November 3. And in a recent interview with Chris Wallace, Trump conspicuously declined to commit himself to accepting the results of the election.

Since then we have indeed been subjected to more of the same. Trump has been relentless in his attacks on mail-in voting and has even been abetted by his captive Attorney General, Bill Barr, eagerly echoing Trump’s groundless claims that such voting is a source of widespread fraud. And in debate with Joe Biden, Trump again brazenly refused to commit to a peaceful and orderly transition if he loses the election. To the contrary, he seized the occasion to urge his followers to turn out as “poll watchers.” While poll watchers have a legitimate function, there is also a history of their being misused as instruments of intimidation. 

The danger of a Trump coup has drawn increasing attention from the media, including in a widely noted article in the Atlantic, “The Election That Could Break America,” and in a lengthy analysis of vote suppression efforts, past and current, in the New York Times Sunday Magazine, “The Attack on Voting.” At the same time, legal scholars have continued to scrutinize the legal issues that the election may spawn. In that respect, the potential intervention of the Supreme Court has heightened the focus on the pell mell haste of Trump and Senate Republicans to gain the confirmation of Amy Coney Barrett before the election. If that effort is not derailed by the pandemic, we may learn whether a Justice Barrett will vindicate her patrons’ assumption that she will be a safe vote to keep Trump in power.

The most hopeful development is that Trump’s disastrous debate performance, combined with the ravages of the coronavirus on the nation, numerous members of the White House staff and the President himself, have led to major declines in Trump’s polls nationally and in battleground states. Trump’s standing will not be improved if he cannot resuscitate the badly needed stimulus bill that he recklessly torpedoed a few days earlier.

If Trump’s downward spiral continues, it is at least conceivable that Biden will be shown to be the clear winner on election night, even without the tabulation of mail-in ballots. That would seem to put the result beyond the grasp of even a desperate Trump and his henchmen, and to forestall the uncertainty, bitter litigation, and other maneuvers that will otherwise ensue. Nevertheless, given the polarized political dynamics of 2020, and the quirks of our Constitution, such a happy prospect is far from assured. Accordingly, I will attempt to bring readers up to date on the situation leading up to November 3, the prospects for November 3, and the possibilities for the period between November 3 and January 20.

From now until November 3.

Trump can be counted on to continue railing against mail-in balloting, while Bill Barr and his Justice Department do what they can to help. Barr’s conduct has been so egregious that it resulted in an October 1 letter of warning from nearly 2,000 DOJ alumni who had collectively served in both Republican and Democratic administrations:

We speak out again now because we fear that Attorney General Barr intends to use the DOJ’s vast law enforcement powers to undermine our most fundamental democratic value: free and fair elections. He has signaled this intention in myriad ways, from making false statements about the security of mail-in voting from foreign hackers to falsely suggesting that mail-in ballots are subject to widespread fraud and coercion. Most recently, the Department made a premature and improper announcement of a mail-in ballot tampering investigation that the White House immediately used as a talking point in its campaign to discredit mail-in voting and to further the claim it will be rigged against President Trump.

The DOJ alumni also cited the “60 Day Rule,” an unwritten but long-established practice of the Department to avoid taking steps in the 60 days prior to an election that might influence the election. In particular, the DOJ alumni cited Barr’s ominous comments concerning the ongoing probe by U.S. Attorney John Durham who was commissioned by Barr to “investigate the investigation” into Russian interference in the 2016 election.

Then, on October 7, the Lawyers Defending American Democracy published an open letter with a searing indictment of Barr’s politicization of the Department of Justice. The letter was addressed to, and expressed support for, the 100,000 professionals working in DOJ, and it was signed by more than 600 members of the bar from across the United States, including three former American Bar Association presidents, three former state bar presidents, eight former federal judges, and four former state attorneys general.

Astonishingly enough, however, Trump has found Barr’s efforts insufficient. On Thursday, in the course of a totally unhinged telephone rant with Maria Bartiromo of Fox News, Trump complained bitterly that, despite having all the information he needs, Barr has failed to indict Democrats, including Joe Biden and Barack Obama, for the investigation of Russian interference with the 2016 election. Trump asserted:

Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it.

In Trump’s eyes “Bill Barr’s going to go down either as the greatest attorney general in the history of the country or he’s going to go down as a very sad — sad situation.” Despite Trump’s fulminations, it was reported on Friday that Barr had told Republicans that a Durham report would not be released before the election. It remains to be seen what alternative cartwheels Barr might perform in order to regain his president’s good graces.

Apart from the activities of Barr and the Justice Department, the major feature of the current situation is litigation between Republicans and Democrats. Both Republicans and Democrats have assembled vast armies of lawyers to conduct courtroom warfare before and after November 3. Litigation to date has raised a variety of issues, but most often involved the attempts by Republicans to narrow the opportunities for mail-in voting and by Democrats to expand them. For those who have the interest and the stamina for a deep dive into the litigation, I would recommend the Election Law Blog of Rick Hasen, a professor at the University of California’s Irvine School of Law.  As of October 6, Hasen’s blog reported that there were 275 recent or pending COVID-19 related election law cases, and it has summarized the more significant ones.

One recent case reaching the Supreme Court was Andino v. Middleton in which the Court issued an order on October 5. That order reversed a lower court ruling which had set aside, on grounds of hardship related to the pandemic, a requirement of South Carolina law that mail-in ballots be accompanied by a witness’s signature. The Court, however made an exception for ballots cast before the Court acted and received by election officials within two days of its order. The court’s hard-line conservative members, Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch, wrote that they would have reinstated the requirement without any exception.

Another case pending before the Court arises out of Pennsylvania law. In Scarnati v. Pennsylvania Democratic Party, the Republican legislature seeks emergency relief to block a ruling by the Pennsylvania Supreme Court that required election officials to count mail-in ballots received up to three days after Election Day, even if they lack a legible postmark or any postmark at all. A ruling from the Court is expected at any time.

The ruling of the Court in the South Carolina case, and how it rules in the Pennsylvania case, may or may not foreshadow how the Court will rule in a post 11/3 case, but the South Carolina ruling does suggest that Trump will find a sympathetic ear in Justices Thomas, Alito and Gorsuch at the very least. If either Chief Justice Roberts or Justice Kavanaugh is a possible swing vote, the position taken by a newly confirmed Justice Barrett could be decisive.

November 3.

The principal concern for election day is the extent to which Trump supporters, in the guise of poll watchers or otherwise, may seek to intimidate voters or to disrupt the proceedings. The tone and substance of Trump’s call for poll watchers during the Biden debate were sufficiently alarming that the attorneys general from Michigan, Nevada and Wisconsin held a news conference on October 6 to warn people being recruited as unofficial poll watchers that they will be prosecuted if they try to intimidate voters, violently or otherwise. They said President Trump’s call during the first debate for his supporters to “go into the polls and watch very carefully” was a clear attempt to encourage harassment of voters. They noted that when Mr. Trump made similar remarks during the 2016 presidential campaign, he added: “And when I say ‘watch,’ you know what I’m talking about. Right?’”

Even worse than the prospect of unofficial poll watchers was Trump’s threat in an August interview with Sean Hannity to deploy law enforcement personnel: “We’re going to have sheriffs, and we’re going to have law enforcement, and we’re going to have, hopefully, US attorneys, and we’re going to have everybody and attorney generals (sic).” It is highly doubtful that Trump has authority to execute such crude maneuvers. But lack of legal authority has never been something Trump has taken very seriously, and if local authorities cannot be enlisted, Trump may resort to deploying uniformed but unidentified federal agents, as he did in Portland this summer.

In addition to voter intimidation on election day, there could be efforts to disrupt the ensuing tabulation of mail-in ballots. By way of precedent, the New York Times article, “The Attack on Voting,” recalled the “Brooks Brothers Riot” in Florida in the 2000 election, when operatives of the Bush campaign were able to halt a recount in Miami-Dade County. In 2020, a similar intervention could interrupt the counting of mail-in ballots or create scenes of chaos to give a pretextual basis for a state legislature to appoint its own set of electors.

The Legal Landscape From November 3 to January 20.

The initial battles over mail-in ballots and other election issues will likely be governed largely by state law and fought out in state courts where a myriad of differing laws will apply. (See, Richard Altieri in Lawfare, “The State Laws That May Decide a Disputed 2020 Election.”) Whether, and at what point federal courts, and ultimately the Supreme Court, will intervene is, at this point, a matter of conjecture.

In terms of the constitution and federal statutes, Blog No. 265 set out the basic milestones and legal authorities that will govern the journey from November 3 to January 20. I will not re-traverse that territory but, subsequent to that blog, there have been interesting analyses addressing some of the more important legal issues that may arise in that period.

One possibility cited in Blog No. 265 was that a state legislature, confronted with mail-in ballots producing a result it did not like, or with what it deemed to be chaos, would appoint its own slate of electors. As explained in the blog:

Under the Twelfth Amendment, state legislatures have the authority to appoint electors directly and, while legislators in every state have ceded their authority to voters, the Court in Bush v. Gore pointed out that it could be reclaimed. Some scholars have theorized that Republican legislatures in say, Pennsylvania, Michigan or Wisconsin, might assert their authority to appoint electors to replace the Biden electors chosen by the popular vote.

If the slate of electors appointed by the legislature conflicted with a slate produced by counting mail-in ballots and certified by the Governor, the conflict might have to be resolved by Congress pursuant to the arcane and almost unintelligible provisions of the Electoral Count Act (an act that, even apart from its opacity, may be an unconstitutional departure from the Twelfth Amendment).

The possibility of a Republican legislature acting to appoint electors has been a matter of concern for scholars and other observers, such as Fareed Zakaria, who wrote in the Washington Post a column with the alarming title “Trump could stay in power even if he doesn’t win the election. The Constitution allows it.” Zakaria pointed to the authority of state legislatures under the Twelfth Amendment and noted that “Of the nine swing states, eight have Republican legislatures. If one or more decide that balloting is chaotic and marred by irregularities, they could send what they regard as the legitimate slate of electors, which would be Republican.”

A helpful measure of reassurance was provided by a blog in Dorf on Law (written by Michael C. Dorf along with Laurence Tribe and Grace Brosofsky) arguing persuasively that a legislature could not act alone, but would need the assent of the Governor. There is, however, no assurance that the writers’ analysis, however persuasive, would prevail in a Supreme Court anchored by Justices Thomas, Alito and Gorsuch. Moreover, their analysis would provide no comfort in key battleground states, such as Florida and Ohio, where both the legislature and the Governor’s office are in Republican hands.

In the latter states, the only defense against the legislature’s electors would seem to be that their appointment, after the election and in derogation of the popular vote, offends both the equal protection and due process protections of the Constitution. I believe such an argument can find support in the Bush v. Gore decision of 2000, but that is far from saying that it would be accepted by the current Court (or by the House and Senate, if they are called upon to decide pursuant to the Electoral Count Act.)

One possibility discussed in Blog No. 265 was that if there were unresolved contests over electoral slates, and both of two competing slates were disqualified in one or more states, neither candidate might reach the 270 votes representing a majority of the Electoral College. In the absence of an Electoral College majority, the Twelfth Amendment gives the House of Representatives the responsibility of choosing the President. As the Amendment also provides, each state’s delegation has one vote. At present, Democrats have a large majority in the House, but Republicans have an edge in the number of delegations with 26. In recent weeks this anomaly has gained increasing attention from both Republicans and Democrats.

At a Press conference on September 16, Trump referred to election disputes and observed, “You know, at a certain point, it goes to Congress. You know that.” Ten days later, at campaign rally in Pennsylvania, Trump suggested he might draw on his “advantage” in the House to help deliver him a second term:

We are going to be counting ballots for the next two years. I don’t want to end up in the Supreme Court and I don’t want to end up in Congress either — even though we have the advantage if we go back to Congress. Does everyone understand that?”

At the same time, Nancy Pelosi has not been idle. As reported in New York Magazine on September 28:

Pelosi, in a Sunday [September 28] letter to House Democrats, urged them to consider whether the House might be pulled into deciding who is president when determining where to focus resources on winning seats in November. This could lead to more concerted efforts by Democrats to win in states such as Montana and Alaska — typically Republican turf but where Democrats have been competitive statewide. In these states, Democratic victories could flip an entire delegation with a single upset House victory.

Once again, however, some reassurance has been offered by Professors Tribe and Dorf.  In an essay in Verdict, “No, Republicans Cannot Throw the Presidential Election into the House so that Trump Wins,”  written with Professor Neil H. Buchanan, they endorsed Pelosi’s strategy as a back-up, but insisted that there would be no reason for the presidential selection to be made in the House of Representatives. The authors pointed out that, by its express terms, the Twelfth Amendment does not require a majority (270) of the total potential electors (538), but only a majority of the electors who are “appointed.” Thus, if some electors are disqualified, they are not validly appointed; in that case, the “denominator” of electors changes and the majority is a number less than 270.

The analysis in Verdict seems entirely convincing. There is, however, no guarantee that it would be accepted and applied by the Supreme Court. And it does not exclude the possibility that, even with a lower denominator, there could be a tie in the Electoral College. (The latter possibility may be slight, but in the weird world of 2020, it is hard to dismiss any possibility.)

If all of the foregoing seems rather depressing, it may nevertheless be what we are going to have to live with for the next several weeks or months. To close on an optimistic note, however, I will refer readers to an essay in Politico, by Michael Waldman and Wendy Weiser, who are, respectively, president and vice president for democracy at the Brennan Center for Justice at NYU Law. The essay is entitled “6 Reasons Not to Panic About the Election,” and although the writers would clearly be appalled by Trump’s remaining in office, they discount the possibility of a Trump coup:

Our institutions and laws are strong enough to prevent a stolen election. Voters decide. If any candidate tries a coup, we will be the first on the barricades. In the meantime, we should focus on making sure all Americans vote and then fight to have all their votes counted.

I hope they are right, but if they are not, I will join them on the barricades.