McConnell: It's crazy to think a state legislature might overturn the results of an election

I hope Mitch doesn’t mind if I bookmark this willfully naive soundbite for use against him in 2024.

He was speaking here about the Democrats’ new push for an election reform bill in Congress, one version of which could target the ability of state legislatures to throw out the results of an election after the votes are in. Why would Democrats be worried about that? Because Trump took an interest in the idea last November, going so far as to hold a meeting about it with the Republican leaders of Michigan’s state senate and house of representatives. That effort failed because it seemed unthinkable at the time. But after another year of Trump propagandizing relentlessly about widespread fraud and consolidating his power over the GOP, it’s anyone’s guess whether the Overton window has now moved far enough that GOP legislators would comply with a request to overturn a Democratic victory in their state. Canary in the coal mine: Three months after he refused to meddle in Michigan’s election results, senate majority leader Mike Shirkey took to claiming that the January 6 insurrection was a “hoax” and “staged.”

That Overton window can move awfully fast with enough pressure.

McConnell is reasoning that a legislature wouldn’t dare disenfranchise their own voters in a federal election for fear of being punished by those voters in the next state election, but the incentives aren’t so clear cut. If you represent a solid Republican district in Michigan, what’s a bigger threat to your career? Overturning the results to aid Trump or refusing to overturn them? You might lose your next general election if you vote to overturn, and you’d deserve to. You will lose your next primary if you don’t.

And you might lose more than that. I’m thinking again of what Rep. Peter Meijer told The Atlantic about the night of January 6, when the House reconvened after the riot to vote on whether to certify Biden’s victory.

On the House floor, moments before the vote, Meijer approached a member who appeared on the verge of a breakdown. He asked his new colleague if he was okay. The member responded that he was not; that no matter his belief in the legitimacy of the election, he could no longer vote to certify the results, because he feared for his family’s safety. “Remember, this wasn’t a hypothetical. You were casting that vote after seeing with your own two eyes what some of these people are capable of,” Meijer says. “If they’re willing to come after you inside the U.S. Capitol, what will they do when you’re at home with your kids?”

If you fear defeat from the left but death from the right depending on whether you vote to overturn, how do you vote?

The reality McConnell’s conveniently overlooking is that most politicians from both parties but especially from the GOP no longer need to worry much about swing voters. They represent solid blue or solid red districts; pandering to their base is the key to electoral success. That’s less true of senators, who run statewide instead of within smaller and more homogeneous districts, but it’s broadly true there too. And Republicans realize after two runs by Trump that they don’t need to win the popular vote anymore to attain power. Trump lost by seven million votes last November and nearly nosed across the finish line in enough swing states to hand him a second term anyway. The GOP doesn’t have to offer a product that’s broadly popular, just popular with enough people in enough select locations. Case in point:

It’s goofy to re-nominate a politician whom more than 60 percent of the country wants to be done with when there are younger, less objectionable hands the party can play. But Trump wants to be president again and his cult following will indulge him anything, and therefore his potential rivals won’t dare alienate that cult by opposing him. So he’ll get the nomination if he wants it — this is a nice fantasy but only a fantasy, alas — and then he’ll have a coin-flip chance of winning the election fair and square. His cult will turn out for him along with the huge number of Republicans who are leery of Trump but dislike the thought of being governed by literally any Democrat just a bit more, and that might be enough.

And even if it isn’t, the cult dynamic will weigh heavily on Republican legislators in swing states next time. I doubt there’s a scenario in which a legislature would flatly overturn a Democratic victory won at the ballot box; the authoritarian corruption would be too blatant. Instead, legislatures will resort to another ploy Trump took an interest in last fall, alleging “doubts” about the results or whatever and then appointing their own alternative slate of electors. That would raise a question for Congress about which slate of electors to recognize, the one won at the polls by the Democrat or the one appointed by the legislature for Trump, and Congress will likely be controlled by Republicans in 2024. John Eastman had the strategy all mapped out in the now notorious memo he wrote for Trump last year:

Authoritarians usually dress up their power grabs in the trappings of law and process to lend them legitimacy. Even dictators resort to “enabling acts” from the legislature. That’s the point of Eastman’s memo too, except Eastman ran aground on the fact that Congress was controlled by a Democratic House and a Trump-skeptical Republican Senate. That may not be true in 2024 when/if the “two slates of electors” gambit is tried again. This time, Trump would dare congressional Republicans to not ratify his electors as the legitimate ones, vowing to end their careers if they refuse. McConnell’s right that state legislators who vote for an alternate slate of electors would have to contend with furious Democrats in their home districts, but as I say, the political and personal incentives for a Republican representing a Republican jurisdiction would point to doing Trump’s bidding as the less dangerous option on balance.

The only way it would be crazy for a Republican state legislator to install Trump as the winner via chicanery is if *Republican* voters in the district also objected, believing that it was more important to stand up for democracy than to serve Trump and the party. But no one expects that at this stage in the GOP’s devolution. Kevin Williamson:

When some significant share of citizens feel themselves more closely identified with a particular politician than with the constitutional order per se, then you have the conditions for a coup d’état and a caudillo; when some significant share of citizens feel themselves more closely identified with a party or a movement than with the constitutional order per se, then you have the conditions for a more broad-based revolution. The first gets you an Augusto Pinochet or a Francisco Franco, and the second gets you a Russian Revolution or a French Revolution — both of which eventually produced caudillos of their own, meaning that they ended up in much the same place.

As far as the events of January 6 go, the “stolen election” fiction was a moral-permission slip for acting on loyalties (and the social demands associated with such loyalties) that long preceded the 2020 election and will long outlast it. Some of these revolutionists invaded the Capitol, but the more important ones work there. And what they hope to do is to achieve what Lenin wanted: “unrestricted power based on force, not law.” The legal pretexts feverishly dreamt up by such ghoulish amoralists as Rudy Giuliani were exercises in publicity, not exercises in law. The lawyers are the marketing department of the revolution.

As I said, the caudillos care nothing for law but the pretext that they do has value to them. The more power based on force can be made to look like power based on law, the more willing ambivalent supporters will be to acquiesce in that type of power. That’s what Trump will be counting on in 2024 vis-a-vis Republican state legislators, not to mention centrist Republican voters. Wouldn’t they rather see a Republican authoritarian take power undemocratically than have another left-winger in charge, ruining the country, for four years? Having seen the sort of personal and professional intimidation other GOPers have faced for crossing Trump, how many no-name rando Republican legislators would be willing to bring down the wrath of half the country onto their heads overnight by refusing to overturn their state’s results?

The choice is clear. And contra Liz Cheney, for many it’s already been made.