Attempts to overthrow the presidential election threaten democracy. What can we do about it?
There’s new evidence of how far the Trump administration was willing to go to overthrow the 2020 election.
“It revealed a willingness on the part of mainstream characters in one of the two major parties to go along with what is essentially an authoritarian and antidemocratic movement,” Mike Dorf, a law professor, says.
What does it mean for American democracy?
“The United States is not immune to democratic backsliding,” political scientist Suzanne Mettler says. “It has happened here before, so we need to take it really seriously.”
Today, On Point: What almost happened to this country’s democracy, and what could happen next.
A memo presented to Vice President Mike Pence suggested he might throw the Electoral College count. What did the memo lay out?
Neil Buchanan: “The idea was that in the column that he cited that I was the coauthor of … if a number of electoral votes were thrown out, for some reason, our analysis was that Biden would have still won because he would have had a majority of the electoral votes that were actually cast. Now what Eastman said was rather than saying, OK, that’s a good point. He said, not in these words … basically, challenge accepted.
“All that means is we need to throw out more electoral votes. So that’s where he came up with seven states worth rather than one state. And his argument was essentially that if we can get get Pence to throw out seven Biden state electoral votes, then Trump would have a majority of the remainder. And under the Buchanan/Dorf/Tribe analysis, Trump would win.
“Now, that would have been true if it were illegitimate to throw out those seven states, because the 12th Amendment really is a majority vote rule in the Electoral College. And that’s why the rest of the memo is the more interesting part, because the rest of the memo essentially just says Vice President Pence should have lied about disputes and those other seven states and then and then said that he alone has the power to declare them all invalid. And then only recognize the votes in a way that would have had Trump and Pence himself winning reelection.”
On what the Eastman memo, which outlined a plan to overturn the 2020 election, reveals about the state of democracy
Neil Buchanan: “Those of us who were not complacent all along suspected that things like that were going on behind the scenes. And I’m actually kind of amazed that Pence didn’t go forward with it. Not because it was a good idea. It’s a ridiculous and unconstitutional idea. But because no matter how wrong the idea was, one of the most scary parts of it to me is, What what could have been done to stop it if he had simply gone rogue in the way that Eastman’s memo said that he should have?
“And it’s not like the Supreme Court would have walked into the chamber and said, Oh, you can’t do that right now. So the sort of immediacy and timeliness of it raised the fear that somebody in that position could have just said, Well, try to stop me. I’m amazed that Pence was not that person. I’m delighted that he is not that person. But Eastman’s memo is a joke. But it would have given somebody the veneer of saying, Oh, look, there’s a law memo, and I’m going to follow it now. And even if every competent lawyer in the world would have said that’s a ridiculous memo, it could have just been the pretext for a coup.”
Is the existence of this memo a road map to overturn the next election?
Neil Buchanan: “That’s an interesting question to try to answer, because the memo is so silly that all you can do to describe it is that it purports to lay out six steps. The steps themselves, they sort of blur together and some of them are irrelevant. And so it’s not the content of the memo that scares me. It’s that there are people who are willing to, as you are saying in the introduction, plan. This was not a chaotic Trump just going on the stump and saying whatever he came up with.
“There were people who were going to be willing to stand up and wave a piece of paper around and say, Look, I have this memo saying that Trump won. And essentially say, Try to stop us. Now in 2024, unless something very unusual happens, Kamala Harris will be the vice president. So that doesn’t raise the possibility of having Eastman hand her the memo and getting her to do what he would want her to do. But I guess I just I want to ride on the point that bad legal analysis is bad legal analysis. But it can be very effective political cover for what amounts to just an out and out bloodless coup. Or in this case, almost a bloody coup.”
On an assessment of the health of democracy in the United States
Neil Buchanan: “I wish I could bare good news, but starting right around the time that Trump became the presumptive Republican nominee in 2016, began writing a long series of columns in which I argue that the end of constitutional democracy was visible, that the rule of law was under threat. I was actually one of the people who thought that Trump really would not leave in January 2021, no matter what. I had the picture in my mind of him essentially just saying, I’m the one who is in charge of the military.
“The old line from Joseph Stalin, how many troops does the pope have, right? And I was imagining Trump doing that. So I was delighted that we got a reprieve. And Trump actually did leave 14 days after the insurrection. Delighted and completely surprised. So going forward, I think that the state of democracy is not threatened by the possible repeat of what happened this January, either the peaceful part or the violent part.
“To me, the bigger concern is that Republicans are putting in place the pieces necessary to not even get to the point where they have to worry about the counting exercise in Congress on January 6th, because they’re so effectively suppressing votes. And if they were to retake both houses of Congress by January of 2025, they have two election cycles in which to try to do that.
“The Congress could do what the majority of Republican House members tried to do this past January. Which is to just say, every state that went democratic in the 2024 election is hereby deemed invalid, and whoever the Republican nominee is wins. And they would only have to do that if all of their other suppression efforts had failed. And unfortunately, I don’t think that they’re going to fail.”
On the future of American democracy
Suzanne Mettler: “This is really hard for a lot of Americans to think this way, because we think of the United States as kind of immune from democratic backsliding and deterioration. But what I would say is we need to look at our own past. So when I was watching the events of January 6th, it was taking me back to 1898 in North Carolina. So in the south at that time, the Democratic Party was the party of white people. And newly enfranchised African Americans, for a few decades then had been practicing voting rights, were Republicans.
“There was the rise of the populist party at this point in time, an agrarian movement, and they learned that if they work together with the Republicans, they could actually beat the Democrats so they would run this fusion ticket. And they did that in North Carolina in the 1890s, they started beating the Democrats. So the Democratic Party said, We can’t go on like this. We’ve got to seize back power. And so you had all of these elements then of strong partisanship. A party that was definitely trying to restore its cultural heritage as white supremacist in that area, and high economic inequality.
“What they did was they staged a coup, a coup d’état in the city of Wilmington, North Carolina, in 1898. There were all of these white men in paramilitary groups who were brought together on the morning of November 10th. They marched from the city armory, went to the office of the Black-owned newspaper, burned it down, went into Black neighborhoods, killed lots of people, sent leaders of the community out of town on the train.
“And by the end of the day, the Democratic Party leaders had taken the resignations at gunpoint of all of these elected leaders and installed their own in their place. This brought out into the open what was happening all over the south at that time, and it led to poll taxes and literacy tests, which are then instated. And scaled back voting rights for 60 years to come.”
From The Reading List
The Atlantic: “The Biggest Threat to Democracy Is the GOP Stealing the Next Election” — “The greatest threat to American democracy today is not a repeat of January 6, but the possibility of a stolen presidential election.”
The Boston Globe: “How to prevent the legal strategy that nearly undid the last election from ending democracy” — “At the Jan. 6 rally preceding the assault on the Capitol, Rudolph Giuliani called for ‘trial by combat.’ The next speaker was John Eastman. He praised Giuliani’s remarks and then made fantastic claims of voter fraud, including that ‘secret folders’ of ballots were deployed to deny Donald Trump reelection.”
This article was originally published on WBUR.org.
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