TRUMPIAN NIGHTMARES

Yesterday, Joe Biden set forth his opinion that Trump is so desperate that

"Mark my words. Trump will try to kick back the election somehow. He will come up with some rationale why it cannot be held."

Is that realistic? Is Trump that devious?

Yes, he is that devious, but the plan would not work, for several good reasons.

I.

First, the Constitution clearly gives Congress the exclusive power to fix "the time, place, and manner" of the election of members of congress, and the time of choosing presidential electors. Congress has specifically established the date for all states to hold these elections on "Tuesday after the first Monday in November."

There is neither Constitutional nor legislative warrant that would permit the president to change that under any circumstances, and no president has tried to do so. (We had timely federal elections during the War of 1812, the Civil War, and WWII.) 

                                                        

And there is a further complication to cancelling the election: The Twentieth Amendment provides that "The term of the President and the Vice President shall end on noon of the twentieth day of January." So by a cancelling the election, Trump cancels his presidency as of noon, January 20!

Good riddance, you say? Hold on: When Trump and Pence lose their office on January 20, who succeeds to the presidency? The Presidential Succession Act of 1947 says the Speaker of the House. President Pelosi?  Not so fast. The Twentieth Amendment also says that "the terms of the Senators and Representatives end on the "third day of January."

 So, if there is no election in 2020, the entire House of Representatives is dissolved on Jan 3, and by the time the Trump/Pence team is dethroned on January 20, Nancy has been out of a job for two and half weeks!

Who's next in line?  It depends. If the Senate is still in existence (conceivably only the one-third up for election in November 2020 lost their seats on January 3) the next in line is 87 yr old president pro tem of the Senate, Chuck Grassley, the Iowa Republican who has been in the Senate for forty years!

On the other hand, If you read the Twentieth Amendment as dissolving the entire Senate on January 3, then the job goes to former Tea Party Congressman, now Secretary of State, Mike Pompeo.

Would the Supreme Court allow this to happen? Would the Court allow Trump to shred the Constitution? Even this Supreme Court?

I doubt it. It is a reach too far, even for the likes of Kavanaugh, Gorsuch, et al.

Therefore, I suggest, Trump would not risk trying to cancel the election. No, not because he honors the Constitution, but because if he tried to delay or cancel the election, and was slapped down by this Supreme Court, he would have, for sure, forfeited any chance of re-election.

II.

The next nightmare that keeps Democrats awake is equally unlikely. Assume Trump announces that because the country is in a state of national emergency, he is extending his term of office under his emergency powers. His power is "total," he says, and as Commander in Chief in the war against the re-emergence of Covid-19, (or some other bullshit assertion,) he must remain in power until the emergency is over. This is the Michael Cohen prediction in his House testimony last year. (And recall please, that a former NYC Mayor by the name Giuliani made the same assertion after 9/11, but that was only a suggestion, and he was laughed out of office.)

No way Trump could get away with that stunt. Even if the worst Attorney General in history approved, the Supreme Court would fire Trump. And while some yahoos and neo-nazis would cheer him on, the country would not stand for it, and even his own party would abandon him, and federal marshals would carry him out. (Pence and Melania would go quietly.)

Bottom line, a self-imposed extension of his term of office would not only be illegal, Trump just could not get away with it.

III. 

Now the bad news. This chapter deserves the "Nightmare" label. Pay close attention please.

Trump needed 270 electoral votes to win the 2016 election.

He got 304. The margin of victory was a 77,000 popular vote edge in three states: Pennsylvania (20 electoral votes), Michigan (16 electoral votes,) and Wisconsin (10 electoral votes) -- 46 electoral votes. Without them, Trump has only 258 votes, and loses.

To win in November 2020, Trump must keep the red states he won in 2016, especially the big states like Florida (29 electoral votes, and Ohio (18 electoral votes), and keep at least Pennsylvania and Michigan.

But what if......

Assume it's the first week in October, and Trump has not overcome "just being Trump." His disastrous performance in his nightly Covid press conferences, when added to the lagging economy, has yielded polling results that indicate he will not only lose Pennsylvania and Michigan, but he is far behind in Wisconsin, Ohio, and Florida as well. A loss of those states' 93 votes would yield a 317-227 electoral college victory for Joe Biden. (Trump has often referred to his 304-vote plurality as "A LANDSLIDE VICTORY.")

While we are talking about the electoral college here, allow please, a brief historical review of how we got in this mess:

In the debates leading up to the adoption of our Constitution in 1787, James Madison argued for popular election of the President. Hamilton, a bit wary of "too much" democracy, wanted some elitism in the decision-making, (presumably to screen out draft-dodging, lying, illiterate narcissists, or their equivalent). Very much a Federalist, Hamilton urged that the people of each state should choose the electors, who would then choose the President, but there was no agreement on how that should be accomplished, and the Founders punted and provided, in Art II, Section 1,

"Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors ... ."

By 1836, each state in the Union, but one, had abandoned legislative appointment of electors and decided that its electors were to be chosen by popular vote of the citizens of the state. The last state to go that route was South Carolina in 1868.

 Now, back to our nightmare.

What do the five key states PA, MI, WI, OH, and FL have in common? Bicameral legislatures, that's what. What else? All ten of those legislative bodies have Republican majorities.

Get the picture?

Aside from morality, (but be real, we are talking Republican politics here, think Donald Trump, Leader Mitch McConnell, Rudy Giuliani, William Barr, et al) what would prevent the legislators of those five states from deciding to revert to legislative appointment of electors? They could then abandon popular election of electors and simply appoint Trumpists!

There is no law to prevent that. None. A court challenge would fail. The Constitutional mandate is clear: Each state legislature may decide the manner of appointment of that state's electors.

In the only Supreme Court decision ever to deal with that issue, the Court ruled:

"The Constitution does not provide that the appointment of electors shall be by popular vote. ... It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method  of the object."

And if one has any doubt about depths of Republican villainy, be reminded that in the 2000 election, the Florida Republican legislature threatened to make hanging chads irrelevant by announcing, in its Supreme Court filings, that it was considering scrapping the popular vote method for choosing electors and switching to legislative appointment of electors!

(Hmm. I wonder if that threat had any influence on the five member majority in the shameful Bush v Gore decision.)

So what's to stop this from happening? I dunno, but it's five o'clock, the sun is behind the mountain, and it's time: bottoms up, friends!

A bientot.

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