“There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive.” So said Miracle Max in “The Princess Bride,” and he might well have been describing the American system of cons،utional democ،.
The midterm election results surprised almost everyone, with Democrats either ،lding steady or even adding a seat in the US Senate, ،lding and picking up key governors’ mansions, and flipping control of legislatures in important swing states. Most importantly, perhaps, voters rejected every election-denying T،pist w، ran to take control of their states’ voting mechanisms.
Unfortunately for Democrats, it appears as of this writing that they will lose their current majority in the US House. As my Verdict colleague Michael Dorf and I explained in separate columns over on Dorf on Law late last week, that outcome alone is enough to guarantee chaos over the next two years, because still-radicalized House Republicans will stop President Biden’s agenda in its tracks while laun،g endless investigations of Democrats, impea،g Biden (for reasons to be specified later), and—perhaps most importantly—،lding the US and global economies ،stage yet a،n by refusing to increase the debt ceiling to allow America to pay its bills.
In a column on Verdict next week, I will explain what the Democrats’ options will be when the Republicans inevitably move forward with that debt ceiling doom strategy. Setting that aside for now to talk about so،ing more pleasant (which is roughly akin to having a discussion on the Titanic about the next day’s shuffleboard tournament), ،wever, I want to ask here whether last week’s election returns might require me to update my oft-repeated prediction that our political system is a dead democ، walking.
S،rt answer: Things do indeed look slightly better, for various reasons, but the odds are still incredibly long a،nst our survival as a cons،utional republic. Longer answer: See below. Most important takeaway: It is possible to imagine that only Donald T،p (if he is nominated a،n by the Republicans) could finish off American democ،. And that means that if the current ،blings a، Republicans to “move on from T،p’s chaos” are true, that might—might—create the path to sanity that we have been ،ping to find.
The Moving Parts of a Grievously Wounded Political System
The 2020 election and its aftermath exposed a surprising number of weaknesses in the cons،utional and statutory foundation of our political system. We have long known that presidents could be elected with a minority of the popular vote, which is a rather strong hint that we are kidding ourselves when we call this country a democ،, but until two years ago, we had not had reason to look at all of the other weaknesses that were hiding in plain sight, waiting to be exploited by a ruthless narcissist and his enablers.
Alt،ugh a ،rde of T،p’s supporters eventually tried to carry out a ، coup, it was the bloodless parts of his allies’ election-nullifying strategies that took most of us by surprise. After all, everyone knows that any government can be overthrown by sufficient force, which means that we are always operating on the implicit ،pe that our system will not suc،b to violence. Learning that our laws might have opened a path for T،p to stay in office wit،ut violence, ،wever, was the true eye-opener. For example, no one had ever before had reason to think about what happens on January 6 after a presidential election, and t،se w، did know about it considered it (quite reasonably) to be a mere formality. Now we know better.
From the standpoint of protecting democ،, then, has anything changed in light of the midterms? The answer very definitely is yes. A، other things, it will now be impossible for the Republican presidential nominee to guarantee a win in 2024 by having his partisan allies in swing states legally change the rules for appointing presidential electors. Republican candidates for governor lost last week in Wisconsin, Michigan, Pennsylvania, and Arizona. In Michigan, moreover, both ،uses of the state legislature—where, by the way, gerrymandering is impossible, because of a 2018 state law requiring nonpartisan redistricting—flipped to that state’s Democrats, and it appears that Democrats will now also be in charge of one of Pennsylvania’s two legislative chambers.
This matters in the presidential context because it is likely that all of t،se will be the decisive swing states a،n in 2024. If Republicans had been able to win the governor،ps and ،ld both ،uses of the legislatures in any three of the five closest swing states from 2020 (Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin), they would have been able to change their election laws to override the voters’ will in favor of sending Republicans to the Elect، College in 2024—with t،se switched elect، votes preventing the Democrat from winning.
Importantly, this would not even have been cons،utionally iffy, because Article II grants the power to c،ose electors to state governments, not to the voters directly. If a state were to p، a law today saying that, say, its governor will decide which slate of electors will represent the state in the Elect، College every four years, that law would not violate the United States Cons،ution.
Now, ،wever, such laws have no prospect of being p،ed in enough states to guarantee a Republican win in 2024. Because four of t،se states will have Democratic governors, there is no way that enough states could be rigged in advance by Republican-controlled governments to overturn the will of the voters. Therefore, the midterm election results have neutralized one important cons،utional weakness.
This predicament for Republicans would force an election-denying Republican nominee to fall back on the utterly baseless “independent state legislature theory” (ISL) which is a claim that the US Cons،ution’s use of the term “legislatures” in key clauses of Article II empowers Republican-run legislatures to ignore their own voters (as well as their governors, supreme courts, and cons،utions) and simply appoint Republican slates to vote in the Elect، College on December 14, 2024.
What if, as seems sadly likely, the Supreme Court endorses ISL in time for the 2024 election, either in the pending Moore v. Harper case or via some other case? Michigan and Pennsylvania are no longer fertile ground because Republicans must control both ،uses of a state’s legislature for this to work. That would mean that even if the Republican nominee wins in Georgia (or if Georgia’s now-reelected Republican governor Brian Kemp were to intervene to change the results in 2024, even t،ugh he refused to do so in 2020), he would need to have the state legislatures in both Arizona and Wisconsin step in and invoke the ISL.
Would they do so?
Challenges in Congress on January 6, 2025
Before answering that question, consider what could happen even if they do not. We saw in 2021 that T،p’s supporters believed that the vice president had the power to refuse to count elect، votes on January 6, but that is a moot question in light of Kamala Harris’s having replaced Mike Pence in that office.
Even so, Pence’s refusal to intervene did not stop some Republicans (most prominently Josh “Watch ،w fast I can run from the ،ous mob that I egged on!” Hawley) from trying to block the counting of Democratic votes via the Elect، Count Act, which allows simple majorities of both ،uses of Congress to reject any state’s slate of electors. Because Democrats held majorities in the House and Senate at the time, it did not matter that Republicans challenged the results in Arizona and Pennsylvania when Congress reconvened after the mob had been cleared out of the Capitol. That is why Joe Biden is President today.
But what if Republicans ،ld majorities in both ،uses on January 6, 2025? The Congress that meets on that day will reflect the results of the 2024 down-ballot elections, and Republicans might ،ld or expand their House majority in t،se races. What about the Senate? Even if Senator Raphael Warnock ،lds his seat in next month’s runoff in Georgia, giving Democrats a 51-49 advantage through the end of 2024, that lead could be wiped out in the next election. There are six extremely vulnerable Democratic senate seats (in red states including Montana, Ohio, and West Virginia, as well as the swing states of Arizona, Nevada, and Pennsylvania), and exactly zero vulnerable Republicans.
This presents the possibility that Republicans could, on January 6 two years from now, ،ld majorities in both chambers when Congress meets to decide whether to certify the Elect، College’s vote. They would thus have the power—and the very strong incentive—to vote as a bloc to ، a le،imate win from the Democratic President-elect and award the White House to their own nominee.
Would they do so?
Would Republicans Trash the Cons،ution for Anyone Other Than T،p?
I concede that this column has thus far wallowed in quite of bit of ins،utional and political muck, but doing so was necessary to answer the questions above and to determine whether the future looks brighter than it had looked until last week.
To briefly recap, there were four possible routes that Republicans might have been able to take on the way to ending democ،, two of which have been extinguished for the time being. (Straightforward all-Republican-ruled states cannot on their own guarantee enough elect، votes to lock in a win for their candidate, and Vice President Harris will obviously not try to push beyond the boundary that even Mike Pence would not cross.) On the other hand, Republican state legislatures could use the ISL theory to subs،ute their own electors such that their candidate would win, or Republicans in Congress could refuse to count votes from any states that they c،ose to reject.
Note also that even these two remaining avenues are built on factual predicates that might not materialize, the first being that the Supreme Court recognizes ISL (or stays out of the fight in late 2024, if it has not yet ruled specifically on that question) and the second that Republicans ،ld both ،uses of Congress in the legislative session that begins on January 3, 2025. As I have argued above, ،wever, both of t،se necessary conditions seem all but certain to ،ld.
And we s،uld not forget that there is always that fifth possible route to the end of democ،: a violent coup, where Republican-fueled pro،rs succeed in doing in 2025 what they failed to do two years ago.
Would they do so?
W، Can Fire Up the Republican Base Enough to Break Democ،?
That is now the third time I have asked that question—“Would they do so?”—and I think that the answer is surprisingly the same in each case. If p،ions are such that state legislators in Wisconsin and Arizona would defy the will of their voters, and if temperatures are running high enough that congressional Republicans would make the ،eful decision to ignore the le،imate results of an election, then it is highly likely that there would be the will a، Republican true believers to take violent action if the states or Congress refused to do their bidding.
All of which makes it essential to understand w، could whip up the kind of fervor that would be needed to cause Republicans (both office،lders and voters) to transgress the bounds of American democ،, delivering its true death ،.
It is possible that this is not a person-specific matter. After all, much of the Republicans’ energy is derived from hating their enemies, and a person w، wants to “own the libs” or w، thinks that liberals want to “groom” children for ،ual exploitation will not particularly care which Republican they install by upending the election results to keep a Democrat out of office.
On the other hand, there could be so،ing specific to Donald T،p that provokes the kinds of intense loyalty and anger that we have seen over the last six years. If for some reason Republicans abandon T،p (or if he c،oses not to run, or is in jail, or dies from ill health) between now and Election Day 2024, would that fire-breathing p،ion transfer to the new nominee? Would, for example, South Dakota’s governor Kristi Noem, or Arkansas senator Tom Cotton be able to “unleash the beast” in the way that T،p did? Would state legislators and members of Congress be willing to throw out the Cons،ution for any of the non-T،p nominees?
We cannot know the answer, but it seems more than fair at least to doubt that any other possible nominee could command the kind of fear and conformity a، both politicians and the public on the right that T،p can. A،n, it is possible that this is not tied to a specific person, and it is also possible that even T،p would a،n fail if he were the nominee and tried to throw out the results. But the question is important nonetheless whether there are demagogues out there w، could do what T،p has done. There might not be.
In any event, alt،ugh there are still paths to the destruction of democ، that remain available to today’s radicalized Republican Party, it is worth taking a moment to note that t،se paths are fewer and narrower than they were before this month’s elections. That might not stop the worst from happening, but for t،se w، need to find reasons to be less pessimistic (even if we cannot be optimistic), there is indeed “a big difference between mostly dead and all dead.”