America's Political Emergency is Nowhere Near Over

They are going to try to steal the election if Kamala wins, and it could plunge the United States into total crisis.

No matter who ultimately wins the election next week, America remains near the beginning of its political emergency, which stems from rising distrust in the foundational institutions that bind the nation’s fabric.

If circumstances play out such that Kamala Harris ultimately prevails at the ballot box next week, we can expect the campaign to challenge and attempt to overturn the election result to enter full gear, with the efforts already having begun apace.

In the result of a close election, I fully expect an earnest effort by the Republicans, to attempt to engineer a contingent election in the House of Representatives. We know they are already gaming out how to do that. The likely way they would try to do this, is by having Republican-controlled legislatures in swing states that go for Harris, somehow deny Harris the electoral votes, giving neither Trump nor Harris the necessary 270 electoral votes to win, allowing the House to elect Trump president over the will of voters.

The Supreme Court would be the wildcard here. It is likely that Trump and the Republicans would be counting on prevailing on a legal theory that has come to be known as “independent state legislature theory”. The theory goes that the US Constitution contains the clause, “Each State shall prescribe the time & manner of holding Elections by the People for the house of Delegates & the House of Delegates shall be the judges of the Elections returns & Qualifications of their members.”

They interpret this as meaning that any state legislature, by simple majority vote, may apportion elector votes at a meeting of the Electoral College however they please. Even if doing so violates enacted state statutes, state constitutions, or federal law at the time, essentially, they argue that state legislatures are merely following a polite norm of respecting the will of voters but are under no obligation to do so and that this section of the US Constitution renders unconstitutional any state law passed by that same legislature and signed into law by its governor to govern election certification for federal offices. In other words, independent state legislature theory says state legislatures are not even allowed to pass rules on themselves around this. Election results are merely gentle suggestions by voters to lawmakers on who they should vote for in the electoral college, and American citizens should be under no illusion otherwise. This is actually what many Republicans are saying.

Under this interpretation of the law, it is convenient that Republicans control a majority of the electoral votes going into this election. If you are considering a split-ticket vote with Kamala Harris at the top and Republicans down-ballot, I strongly suggest you consider this carefully.

If something like this happens in the coming weeks, it will ultimately be decided by the Supreme Court and its conservative majority. I am not exactly sure how the court would rule on this. However, given the string of recent decisions regarding Trump over the past months, you can count on me as deeply concerned about what they might do here. The reasoning of Trump v. Anderson and Trump v. United States was a pair of disturbing rationalizations inconsistent with the authoring jurists' own stated interpretive principles and theories.

In Anderson, Justice Samuel Alito argued that the court’s decision on whether to allow states to disqualify a presidential candidate under the Fourteen Amendment’s Insurrection Clause needed to be decided in light of the political consequences to a state acting out of unison with the other forty-nine states. But the same justice, in the Dobbs decision overturning Roe v. Wade, went out of his way to insist that the potential negative consequences of such a decision should play no weight in the court’s mechanical and dispassionate application of the law as it is written.

In the case of Trump v. United States, the court read substantial legal immunity for the President into the Constitution on the basis of the Vesting Clause and an allusion to Hamilton’s Federalist No. 70 calling for a “vigorous executive.” However, the Founders wrote no explicit immunity in the text of the Constitution. In fact, to the extent that they did speak about the potential legal culpability of a President, they had this to say in the Impeachment Clause:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.

Emphasis mine. They not only went out of their way to give Congress the Impeachment power, which includes the remedy of removal from office and bar from holding office, but they explicitly said that the President is still subject to criminal law. It does not mention actions taken within the plenary powers of the President under Article II. The Supreme Court has told us that despite all of this, the Founders meant the President to be immune from prosecution in such cases.

It’s not hard to imagine that the Supreme Court could weasel its way into arguing to itself — preferring a Republican president that will appoint Republican judges — that the language saying that “the House of Delegates shall be the judges of the Elections returns & Qualifications of their members” does circumscribe state statutes in the constitution in the narrow case of Electoral College ritual.

Now, I think there’s a decent chance they won’t do this and might ponder the hazardous consequences of ruling in such a way. But given how things are playing out in this country, I wouldn’t take that for granted. Especially considering that Trump-aligned forces in this country will be putting substantial pressure on these conservative justices to rule in their favor and perhaps going so far as to make them fear for their personal safety and their family.

Mitt Romney has said that several of his Republican colleagues in the Senate confided in him that they felt Trump was guilty in the January 6th Impeachment but voted to acquit out of fear for their personal safety, fearing violence from Trump supporters. Indeed, Trump used the threat to Pence and his family’s safety at the Capitol by refusing to call off his mob as a pressure tactic to get him to cave and agree to count the fraudulent slates of electors.

The belief that our institutions are holding is an illusion. They have already been substantially degraded. They are bound to take even more damage in the coming months. The path ahead remains fraught. Even if Harris carries the day and is sworn in as the 47th President of the United States, the authoritarian right will not be done. They will be back in 2026 and 2028. The cultural forces propelling them are growing, not receding.