We Won't Accept a 2024 Trump Coup
By Robert Katz
If Trump succeeds in 2024 in what he attempted to do in 2020, namely stealing the Presidential election, will those of us who voted for the winning candidate accept the outcome? I don’t believe we will, nor should we.
I remember November 7, 2020, just after the major news organizations “called” the election provided for Biden, driving through Berkeley, California and seeing, literally, dancing in the streets. It was a real dingdong-the-witch-is-dead moment, filled with triumph and relief.
We all know that November 7 was not the end. As reported by Molly Ball in Time Magazine, and elsewhere, only an extraordinary behind-the-scenes effort prevented Trump and his supporters from blocking the certification of key state election results and reversing Biden’s win.
And as Barton Gellman, writing in the Atlantic, has warned, Republicans are now in the process of changing our electoral framework to enable Trump to retake the White House in 2024, even if he doesn’t win the election in the way we’ve understood what it means to win. They are focusing on those choke point set up by the Electoral Count Act, the confusing 100 year plus old statute that details how presidential elections are officially certified. The Trump partisans are moving ahead with two types of initiatives: (1) replacing election officials who did not do Trump’s bidding last time with those who will, an effort that has already born considerable fruit, as the Washington Post recently reported; and (2) changing state laws, such as SB 202 in Georgia, to concentrate the power to certify elections in Republican-controlled state legislatures, away from local election officials.
Aside from our written Constitution, we have an unwritten one – laws, rules, customary practices that are so deeply ingrained in the way we govern ourselves that we can’t abide behavior that violates them. One of those rules, written into the statutes of every state, is that the voters, by a majority, elect the electors that will represent their state. It was not always that way. The Constitution only says that the state legislatures are to decide how the electors will be chosen. At the beginning of our Republic, the legislatures chose electors themselves, but by the 1830s, they had given that power to the state’s voters, where it has remained for almost 200 years. The power of the voters to choose their state’s electors by majority vote has become such an intrinsic part of our democracy that legislatures don’t dare usurp it outright.
So what if Republican legislators, following the ex-President’s lead, use Trumped up charges of massive voter fraud to justify discarding large numbers of votes and/or refusing to certify the election? Likewise, what if Republicans in Congress object, this time successfully, to state electors under the same flimsy pretext? And what if a right-wing Supreme Court that seems to favor state legislative supremacy in the choice of electors affirms a Trump win?
I don’t believe those voting for the actual winning candidate will ever accept such subversion of our democracy.
It may be said that Democrats accepted the outcome of the 2000 election decided in the Supreme Court by a 5-4 majority, stopping a hand recount and effectively handing George W. Bush a victory, even though the decision seemed manifestly unfair. Why wouldn’t they accept a Supreme Court decision this time around affirming a Trump win? But there is a major difference between the 2000 election and the hypothesized Trump steal. As poorly reasoned as it might have been, the Supreme Court decision did not transgress this nation’s fundamental democratic principle that that the state’s voters decide by majority vote who the presidential electors will be. Instead, Bush v. Gore was essentially about how to determine who won that majority in a particular state, Florida, when the election is a virtual tie and the state’s electoral system is plainly dysfunctional (remember hanging chads and butterfly ballots?). Also, the Supreme Court had, according to Gallup, a 62 percent approval rating just before Bush v. Gore was decided. Today the Supreme Court has an approval rating of 40 percent. The idea that the state legislature can overturn the will of the people in choosing electors, based on bogus fraud claims, is so repugnant to our democratic tradition that no amount of judicial sophistry is likely to convince a majority of the American people to accept it.
So what does that mean, that a majority of Americans would not accept the installation of Donald Trump into the presidency by rogue Republican state legislatures and a hyper-partisan Congress? I’m not sure. General strikes? Tax strikes? Mass protests? This is something we need to start thinking about. But it should be made clear to those Trump acolytes and right wing revolutionaries who attempt some kind of My-Pillow-Guy-style election subversion that this effort will be met by massive resistance on a scale not seen before in this country, and that those who were dancing in the streets in November will be marching in the streets in January, multiplied many times over. Those forces contemplating such a coup should think of the old proverb about sowing the wind and reaping the whirlwind.
But before that day comes, if it comes, those who care about democracy have more immediate concerns: the need to fight for voting rights legislation, electoral reform and pro-democracy candidates in 2022 and 2024, the surest means of preventing the return of Trump and Trumpism to power. More on that in another post.
Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.