Recipe for a Coup

Prior to the November 3 election, Donald Trump and GOP senators stressed the urgency of putting Amy Coney Barrett on the Supreme Court as soon as possible because there was a good chance that the presidential election would be decided there. And it still might. But it will not be a replay of 2000, when SCOTUS ruled that the Florida recount should be stopped and George W. Bush won the presidency by 537 votes.

Biden’s putative Electoral College lead and his margin in each of the five closest state races are too large to be overturned. But the 2020 presidential election might still be decided in the courts. The issue, however, will not involve recounting or disqualifying votes, but rather the legality of state legislatures voting to go against their state’s popular votes in appointing their state’s electors.

Let me explain how the GOP might try to make this go down.

There are five states with Republican-controlled legislatures in which Biden will have won the popular vote—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. If Trump and his allies were somehow able to persuade any four of those five legislatures to appoint Trump rather than Biden electors, Trump would win the Electoral College and the presidency. Clearly this would be a stretch, but it is probably the best bet that Trump and the Republican Party have outside of declaring martial law. And it is an option that has widely been reported to have been floated by Republican partisans in the weeks before November 3.

According to Article II of the US Constitution, the authority to appoint Elctors resides in State Legislatures: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Since 1836, tradition and precedent have consistently resulted in Electors being appointed according to popular vote. Although the president is not elected by the people, Electors historically have been, as we have seen most recently in 2016.

But what would prevent individual legislatures in those five states from doing otherwise? If four of these state legislatures voted to appoint Trump rather than Biden Electors, Trump would reach the coveted 270 mark and be re-elected by the Electoral College. Whether such rogue appointments would withstand the legal challenge of Biden and the Democrats would need to be decided in court. Such a move by the GOP seems to be the most likely way for the Supreme Court to decide the 2020 presidential election as Trumpublicans had predicted.

Let me be clear: this would not be a matter of what are called “faithless electors,” defined as those who pledged to vote for one candidate but decide to vote otherwise. The strategy I’m sketching out does not involve faithless electors, but rather state legislatures appointing electors who have already pledged to vote for Trump. Three of these five states (all but Georgia and Pennsylvania) outlaw faithless electors. But if Biden holds his significant leads in all five of these states, as it appears he will, Georgia and Pennsylvania would not be sufficient to give Trump the presidency.

Nor does this strategy involve Bill Barr’s Justice Department digging up enough evidence to invalidate Biden’s election in court. The reason Barr recently authorized investigations into voter fraud is the same reason that McConnell’s Senate Republicans have been all over national news media supporting Trump’s vague but loud claims of election fraud, and Secretary of Defense Mike Pompeo has assured reporters that there would be a smooth transition in January to “a second Trump administration.” Through the creation of clouds of ungrounded suspicion, Trumpublicans seek to use print, televisual, and socially networked news media to infuence enough elected Republican officials in these five states to appoint Trump instead of Biden electors.

It is important to remember that such influence does not depend on legislatures or news media meeting legal standards of evidence. Trump’s affective politics operate not in the legal sphere but in the mediasphere. He weaponizes Twitter and TV to generate and intensify the shared sense among his followers that all of them, especially Trump, have been aggrieved by Democrats and the news media working together to stop him and them from their rightful victory.  

As Sarah Ahmed has taught us, affective communities of hate emerge through the alignment of white supremacist subjects with the nation (in this case their president). By intensifying affective states of hate and fear, Trumpublicans will try to move their legislative allies to act on their behalf. (And if you doubt whether Republican legislatures would stoop to such measures, I encourage you to revisit the lame-duck Republican legislation passed in North Carolina in 2016 and Wisconin in 2018 to severely limit the powers of those states’ newly elected Democratic governors before they were inaugurated.)

Admittedly, the chance of something like this succeeding remain slim. But it is not impossible. Short of invoking the Insurrection Act and declaring martial law to prevent Biden from assuming the presidency, persuading four of these five states to appoint Trump electors may be the most likely way for the 2020 presidential election to be decided in the Supreme Court, as Trump, McConnell, and others have assured us it would be. In the highest court of the land, law, evidence, and precedent are supposed to prevail. And if things were to get that far, let’s hope that they will prevail, for the sake of this nation’s democracy, and perhaps for the world.