The electoral votes are to be opened before a Joint Session of Congress on January 6, 2021. But the Electoral Count Act, which governs the counting of electoral votes, is rife with ambiguities.
A constitutional crisis could result if the legislature of a state submits a vote certificate that is different from that which the state's Democratic governor submits, and the GOP-controlled Senate disagrees with the Democratic-controlled House. The conflict would invariably end up in the Supreme Court.
"I would hope that the Supreme Court would make the winner of the Electoral College the President if it came to that," Erwin Chemerinsky, dean of Berkeley Law School, told Truthout. "If not, theoretically it could depend on the military. I am skeptical that state governors and governments could do much."
Trump wants Amy Coney Barrett on the high court to resolve just such a dispute in his favor. Barrett did research and provided assistance with briefing for Bush v. Gore, in which a 5-4 majority of the Supreme Court overturned the Florida Supreme Court's order of a statewide manual recount in a very close election.
Barrett, who helped install George W. Bush as president, would likely be a loyal foot soldier in Trump's army as well.
But Senate Majority Leader McConnell's plan for a rushed Senate confirmation of Barrett by October 26 could be derailed by the loss of his slim Republican majority. The GOP has a 52-48 majority in the Senate. Thus far, two Senate Judiciary Committee members, Sens. Mike Lee (R-Utah) and Thom Tillis (R-North Carolina), have tested positive for coronavirus. Sen. Ron Johnson (R-Wisconsin) also had a positive test. Sen. Susan Collins (R-Maine) has indicated she would vote against Barrett's confirmation and Lisa Murkowski (R-Alaska) opposes filling Ruth Bader Ginsburg's seat before the election. With five GOP senators not voting for confirmation, Barrett would not be confirmed.
Trump and Biden have unequal power to challenge the results of the election. Rosa Brooks, co-founder of TIP, contrasted Trump's "awesome coercive powers" with Biden's lack of power to contest the election results. "Joe Biden can call a press conference; Donald Trump could call on the 82nd Airborne," Brooks told Geoffrey Skelley at FiveThirtyEight.
Will the Military Facilitate or Halt Trump's Coup?But would the 82nd Airborne help Trump illegally overturn the election results?
Service members have a duty to obey lawful orders. But they also have a duty to disobey unlawful orders and a law that violates the Constitution or a federal statute is an unlawful order.
Indeed, Pentagon officials said in late September that top military leaders could resign rather than take on protesters in the streets in the event of election unrest.
On June 1, Trump threatened to invoke the 1807 Insurrection Act and deploy active-duty troops to quell Black Lives Matter protests. In response to Trump's deployment of National Guard troops to Washington, D.C., and his threats to deploy federal troops more widely, 89 former defense officials wrote on June 5, "We are alarmed at how the president is betraying [his] oath [to support and defend the Constitution] by threatening to order members of the U.S. military to violate the rights of their fellow Americans." They said that Trump gave governors "a stark choice: either end the protests that continue to demand equal justice under our laws, or expect that he will send active-duty military units into their states." The former defense officials urged Trump "to immediately end his plans to send active-duty military personnel into cities as agents of law enforcement, or to employ them or any another military or police forces in ways that undermine the constitutional rights of Americans."
Although some congressional Republicans have pushed back against Trump's suggestion that the winner of the election may never be known, it remains to be seen whether they will resist his attempted coup. Thus far, they have walked in near unanimous lockstep with Trump, notably during his impeachment proceeding and his Supreme Court nomination of Barrett even as votes are being cast.
Although Trump's COVID-19 outbreak is the wild card here, the prospects for a peaceful transition to a Biden administration if Trump is in charge are dubious.
Ian Bassin, executive director of Protect Democracy, is optimistic, however. "For those worried that Donald Trump could single-handedly defy the election results and hold on to power, fear not he cannot do that," Bassin wrote in an email to Truthout. "In order to do that, he'd need accomplices at every level, throughout the country in the executive branch, in the Congress, in the courts, in state legislatures, in the media." But a landslide in favor of Biden could make potential accomplices feel less confident in supporting Trump if he were to claim that the results are ambiguous or fraudulent.
Voting is absolutely critical for democracy. But at the end of the day, stopping a coup attempt will depend on far more than the ballot, and will require creative and courageous acts of civic and political engagement from all of us.
Let's get to it!
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