What Does a Good Election Outcome Look Like (or: Do Republican-Appointed Justices Have Any Shame)?
by Neil H. Buchanan
I happen to have a very low tolerance for smarminess, but even those who think that Lifetime TV movies are too subtle must surely have a very hard time watching Mike Pence. Accordingly, the only way that I can consume an event like last night's joint press conference with Pence and Senator Kamala Harris is by reading news coverage and watching various talk shows (where even exposure to 15-second clips threatens to send me into convulsions).
Given that none of these so-called debates are actually debates, I no longer feel in any way honor-bound to treat them seriously, as I used to try to do (especially given my many years of involvement with scholastic and collegiate debating). The only thing that matters is how the punditocracy scores them, and even that matters only a tiny bit. For what it is worth, then, the consensus appears to be that nothing particularly important happened last night, and the event changed nothing.
That is good, I guess, although it is kind of astonishing that even people like Stephen Colbert were saying that the event felt refreshingly normal. I guess it was normal in the sense that Pence is a standard-issue movement conservative Republican who lies his way through everything, just as Mitt Romney and Paul Ryan did in their debates in 2012. And it is normal for Republicans to try to turn Democrats' substantive policy critiques into "insults to the American people," or something. In 2020, it is even normal for Trumpists to say that people as individuals will make the best decisions about dealing with the pandemic, so we should not allow Big Government to impose science-based standards. It is all normal. Sickening (in more than one sense), but normal.
What did surprise me is that Pence could not even work up a leaden, eye-rolling response to the question of the peaceful transition of power. After all, in 2016, Pence was the guy who sighed and said that of course he and Trump disavowed white supremacists, acting as if they had been so utterly clear in their denunciations that it was a waste of everyone's time even to have to answer the question again.
But instead, we saw a truly troubling non-denial. Pence's boring superpower is in being able to lie shamelessly while acting as if any suggestion of inappropriateness on Trump's part is absurd. Condescension and harrumphing are his calling cards. All he had to do last night, then, was to furrow his brow, shrug his shoulders, and say: "I can't believe we're still talking about this. All President Trump ever said was that he would not allow the election to be stolen, which I think we should all want any president to say."
That, of course, would have been horsesh*t. Even so, it would have at least allowed Pence to say that he and Trump obviously believe in the peaceful transfer of power, in the best traditions of modern democracy. Instead, he recited a litany of complaints about Democrats supposedly trying to undo the 2016 election, perfidy by the Obama Administration and (predictably) Hillary Clinton, and other distractions. It was whataboutism as gaslighting, and it most definitely did not even pay lip service to the idea that power must be transferred peacefully.
All of which brings me to my question today: What is the best-case scenario for the post-November 3 world that ends in Trump and Pence leaving office on January 20, 2021? I raise this question in large part because I am trying to remain optimistic, given that my recent writings (in particular my co-authored Verdict piece last week with Professors Dorf and Tribe) attempt to show why the various strategies by which Trump is intent on creating chaos have no basis in the law.
But if even a human quaalude like Mike Pence is not bothering to promise (however insincerely) that the rule of law matters, how might the U.S. political and legal system nonetheless hold together sufficiently to force Trump to accept losing the election?
In a new Verdict column today, I explain what I think people like Dorf, Tribe, and many other scholars are doing in laying out analyses of why, for example, Republican-led state legislatures cannot simply declare their states' voting outcomes to be invalid as an excuse to send Trumpists to the Electoral College. Essentially, they -- we -- are saying that this happens to be an area of law in which there is no wiggle room. Constitutional provisions, statutes, and decades of precedent simply do not support anything like what Republicans are now openly discussing in terms of anti-democratic gambits.
Today's Verdict column thus includes a fairly lengthy description of various examples of Republicans, including Republican-appointed Supreme Court justices, simply throwing out the book in order to get what they want. Bush v. Gore is the leading example, but one should also include Heller's ahistorical rewriting of the Second Amendment, NFIB v. Sebelius's 5-justice endorsement of the "broccoli hypo" to limit the Commerce Clause, Alden v. Maine's almost comical admission that sovereign immunity was not truly based on the Eleventh Amendment after all, and on and on.
Even so, I argued with as much optimism as I could muster that the more clearly legal scholars can make the case that Trump's upcoming gambits are made up out of whole cloth, the more likely it is that one or more Republicans will crack, having finally discovered that they are not completely shameless. It is one thing to say, for example, that the Second Amendment's reference to "a well regulated militia" is merely a non-binding preamble (or that the presence or absence of certain commas somehow changes the meaning). It is quite another to say that state legislatures can simply name their own slates of electors, no matter what the governor or the people say.
Or, as one scholar who responded off-list to the Buchanan-Dorf-Tribe column suggested (making a related point in a Virginia Law Review piece: John Vlahoplus, Bound Electors at 27), even a Court that has no problem with gerrymandering of congressional and state legislative districts ought nonetheless to refuse to allow such gerrymandered legislatures to override the choices of the people whom they (mis)represent.
So what is the best-case scenario in which Trump screams that his loss in the election was all a scam but still ends up leaving office? It took me awhile to acknowledge that the degree of Trump's defeat mattered, because I have always assumed that Trump was going to make the same crazy claims no matter what happens. But the larger are the victories in the various states, the more difficult it becomes for any particular Republican to say that it was all fake.
If Trump loses Florida on election night, for example, that is huge. And when I say "on election night," I mean that Florida (for once) sets a good national example by allowing mailed-in votes (including Trump's absentee ballot from Palm Beach) to be counted before November 3, which means that Trump will not be able to claim that all uncounted ballots from that point forward are illegitimate. Or, more accurately, such an argument will not matter. And if Texas goes for Biden (as it actually might) on election night, the available space for Trumpian tactics narrows considerably.
Narrows considerably, but not entirely. After all, some of Trump's strongest supporters hold positions as governor, legislative majority leader, and so on in key swing states. Even setting aside the split-powered states like Pennsylvania and North Carolina, all-Republican governments like those in Arizona and Iowa could still try to supersede the will of the people.
Politicians who are willing to say that Trump deserves credit for "beating" COVID-19 by not dying from it, after all, are probably willing to try anything. Politicians who repeat the lie that the Mueller report "proved the Russian thing was a hoax -- no collusion!" will probably do anything for Trump. Politicians who went from saying, "Well, obviously a quid pro quo would be impeachable, but the Ukraine thing was no quid pro quo," to saying, "Quid pro quos are no problem, and I have never believed otherwise," are up for anything.
Which means that there will almost certainly be moments when the Supreme Court will be called upon to rule. In most instances, it will be better for the Court to refuse the invitation, so even a decision to take some cases will be evidence that something bad is about to happen. But even then, five justices on the Supreme Court will have to bless an utterly lawless breaking of the system. I suspect that at least two of the Republican-appointed justices are all in on anything, and (even leaving out the new person who is likely to have been installed by then) there is every reason to worry about the other Republican-appointed justices.
Remember also that those justices are not going to be ruling in a vacuum. There will likely be large protests in the streets, which will have become violent at Trump's instigation. The justices will also have to worry about whether it even matters that they could be destroying their own legitimacy in the service of a man who is not even a movement conservative (or a conservative of any kind, other than the racism).
And these jurists are human beings with personal histories, friends, and professional relationships that are all tied to the Republican Party. In the biggest moment of their lives, will they be willing to say that everyone who talks to them is going to have to accept that the law is simply not on their side? Or will they instead shed the last remnants of shame and say that we have always been at war with Eastasia, that freedom is slavery, and all the rest?
What does a "good outcome" look like, in a not-at-all-good world in which Trump will do everything to destroy the system for his own benefit? Either enough state-level Republicans will stand down on the claims of mail-in voter fraud and do what is right without needing to go to court, or the Supreme Court will (passively, one hopes, but possibly actively) tell them that some legal arguments are simply too outlandish to take seriously. Am I confident? No. Am I hopeful? Always, and all the more so as the legal case is made that none of Trump's ploys passes the laugh test.