The Road to the Stolen 2024 Election

State Senator Doug Mastriano speaks to the ReOpen PA rally, Sandy Weyer who is currently being investigated by the Department of Justice for her actions at the January 6th 'Insurrection.' (Photo by Zach D Roberts/Nur... State Senator Doug Mastriano speaks to the ReOpen PA rally, Sandy Weyer who is currently being investigated by the Department of Justice for her actions at the January 6th 'Insurrection.' (Photo by Zach D Roberts/NurPhoto via Getty Images) MORE LESS
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September 27, 2021 11:22 a.m.

I’ve been gratified to see that the threat to the 2024 election and really all elections that come after it is beginning to seep into the mainstream or prestige political dialog. You may have seen Robert Kagan’s essay in the Post or this one in Politico or other pieces that have appeared in the last week or more. These don’t tell us a lot that we don’t know. But especially pieces like Kagan’s place the critical conversation in one of those prestige venues that exist outside the limits of “both sides” analysis. Maybe the foundations of our democracy are under active threat and we see it all happening right in front of us. Maybe it’s not a general issue. Maybe it’s the radicalization of one political party increasingly taking aim at the foundational rules and agreements that make civic life possible in this country.

I thought it was worth laying out just what we’re talking about in specific terms. The general problem is that a radicalized GOP simply no longer accepts the idea that elections apply to them. Or rather, elections they don’t win can’t be legitimate, by definition.

But there are specific paths that get you to acting on that belief. So let’s discuss them.

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A core path has to do with the intricacies or shortcomings of our political system itself. We don’t need to worry that the New York State legislature is going to throw out the results of a presidential election or that that is going to happen in Idaho or South Carolina. This makes sense. Because the same electorate is voting for president and electing the legislatures. They’re almost certainly going to the same party. So how does this even become a problem where the legislature overrules the wishes of the same electorate that elected the legislature?

Where things get dicier is when a state government is controlled by one party and the state goes to the presidential candidate of the other party. In theory this might happen in any purple state. But the real issue is where you have gerrymandered state legislatures that are reliably controlled by the GOP and statewide electorates that sometimes vote for the Democratic candidate. In some cases it’s gerrymandering. In other cases it’s the urban/rural split. Usually it’s both. But the key is that statewide votes and legislative majorities are in conflict.

This has spawned a number of proposed laws around the country which, in essence, allow the state legislature to review the results of a presidential election and throw it out if they decide it’s not legitimate. In other words, they’ve created a legal framework to steal the election from their own state’s voters.

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Things get more complicated when governors get involved. By definition governors are elected by the same statewide electorates that elect presidents. This was a key issue in 2020. In five of the key states (Pennsylvania, Wisconsin, Michigan, Georgia and Arizona) Republicans controlled the legislatures. But in the three northern states Democrats had elected the governors. Arizona had a Republican governor but a Democratic secretary of state, who runs the elections. This is why Trump was so uniquely focused on Georgia. It was the one state with a close result where Republicans controlled everything. Everyone in a position of power was subject to the career-destroying bullying Trump can bring to bear on Republicans.

This angle on stealing an election is also why conservative judges have recently become so enamored of a highly strained constitutional interpretation which holds that state legislatures are the ultimate judges of state elections – even beyond the strictures of the state’s constitution. For example, perhaps the state constitution says some of the power goes to the secretary of state or the governor or simply prohibits the legislature from tossing out the results of an election. But Justice Alito says that the federal constitution overrules all that and allows the state legislature total power to do anything it wants.

This legislative power grab models is we might call the election rigging nuclear option. But there’s a more mundane and prosaic path.

One key factor in how 2020 played out is that a number of Republican secretaries of state – most visibly Georgia’s Brad Raffensperger – simply refused the pressure to steal the election. Republicans have been making quick work of replacing those people with other Republicans who are Big Lie loyalists, either by electing new people or reassigning who gets to make those decisions.

Next we have the same kinds of stratagems playing out at the federal level. Absent a tie vote, Congress is not supposed to play anything but a procedural role in confirming the results of an election. Here 2020 was clearly just a dry run. Given the precedents set in 2020 it’s difficult to imagine a Republican House or Senate simply accepting Democratic electoral majorities any more than they allow majority votes in the Senate for legislation they don’t support.

What’s notable here is that we have the same core dynamics at work. House elections routinely amplify Republican support. If Republicans and Democrats get the same number of votes nationwide in the House Republicans will get a fairly sizable House majority. Some of that is gerrymandering, a lot is just the urban concentration of Democrats. Democrats already have to do much more than get the most votes to become President. Republicans actually barely try to do that anymore. Republicans have won a majority of the votes for President only once since 1988. Just once, in 2004. The real battle is in the electoral college. Structural advantages in the House amplify that even more.

One way to see Big Lie activism is simply an effort to use these structural advantages to maximum effect to throw out election results where Republicans don’t win.

Of course, there’s also the whole terrain of voting restrictions. But these in a sense seem different to me. Restrictions on voting are not new in American history. States have a lot of leeway in deciding how to run their elections, unless the federal government steps in to give them ground rules – stuff like the For the People Act. So that is super important but it’s a different category of threat.

The biggest other factor animating all of this is something much more amorphous but likely more significant. Our friend Rick Hasen has been talking about it a lot recently. The essence of Big Lie activism is to discredit civic democracy and lay the groundwork for its overthrow. It is based on the core conviction that elections which Republicans do not win by definition cannot be legitimate. But there’s a more immediate and concrete aim. The people who steal the 2024 election will mostly know they’re stealing the election. They will do it because they’ve created a path of logic that justifies doing so. One of the key ways Rick sees this happening is in the marinading intensity of what we might grandiloquently call ‘Big Lie discourse’. If you stew people long enough in the claim that the Democrats stole the 2020 election they’ll feel justified in stealing it for themselves in 2024 because that’s just fair play. You’re just evening the score.

It’s the essence of GOP grievance politics aimed squarely at the forehead of civic democracy.

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