The Devil's in the Details: Electoral Surgery Required?

The Devil's in the Details: Electoral Surgery Required?

by John Kendall Hawkins

In a New York Times piece today, Blake Hounshell and Leah Askarinam delve into the mysteries of the Electoral Count Act from 1887. They fear, for us, that the Act could be abused in the near future (the 2024 presidential election) by political miscreants who cry Foul! as they themselves foul the Constitution with a mourning constitutional that begins a right-spinning revolution that flushes the 'baby' down with the turd water. They put it a little differently in "The 1887 law putting American democracy at risk," but the net effect is the same. There are beasts afoot, two evils, looking to undermine our democracy so that it has to be rebuilt, and guess who comes out on top in that one?

The NYT writers start out by telling us that "The Electoral Count Act is both a legal monstrosity and a fascinating puzzle." We saw a taste of it on January 6, 2021, when the House convened in Washington, DC to perform its traditional task of certifying the 50 states' electoral college votes -- the real votes to elect the president -- each state's representative standing and announcing their choice with the VP "affirming," and, at the end of which, the vote tally confirms the choice Americans have been have informed of by the Press.

But in this largely ceremonial ritual, sh*t can happen: A Trump comes along. The Times tells us the language of the law is a kind of IED waiting to boom on closer inspection:

The law itself is a morass of archaic and confusing language. One especially baffling sentence in Section 15 which lays out what is meant to happen when Congress counts the votes on Jan. 6 is 275 words long and contains 21 commas and two semicolons.

Amy Lynn Hess, the author of a grammatical textbook on diagramming sentences, told us that mapping out that one sentence alone would take about six hours and require a large piece of paper.

Such intentional legalese has come to be known as the "loopholes" lawyers "find" in the document. The grandfather clauses that come off their rockers once in a while. The Santa Clauses that legislators fill their pockets with more than once in a while. The House electoral certification is the polished turd that comes out at the end of the gassy, contentious college intestinal process.

To explain how such a American-style banana republican move might work, Hounshell and Askarinam draw on the unpublished scenario exercises produced by Yale fellow Matthew Seligman, referred to in the piece as "Mr. Worst Case Scenario" (think: Eeyore with a genius that just amplifies it), who provides "step-throughs" of the many ways the Act could be gamed. In the presidential race of 2024:

Seligman conjures a hypothetical yet plausible scenario: The secretary of state declares that President Biden won the popular vote in the state. But Gov. David Perdue, who has said he believes the 2020 election was stolen, declares there was "fraud" and submits a slate of Trump electors to Congress instead. Then the House, led by Speaker Kevin McCarthy, certifies Trump as the winner.

Even if Democrats controlled the Senate and rejected Perdue's electoral slate, it wouldn't matter, Seligman said. Because of the quirks of the Electoral Count Act, Georgia's 16 Electoral College votes would go for Trump.

If you've got the right people in the right place, the 7-11 rolls become the convenience where votes are stored. Pay at the register.

Anyway, Seligman's scenarios are abstract to some degree -- an egghead's paradise. The Times makes three quick suggestions for limiting the processing of the certification at the end to prevent malfeasance. They grant permission for Seligman to speak on behalf of his motivating factors:

"Its underexplored weaknesses are so profound that they could result in an even more explosive conflict in 2024 and beyond, fueled by increasingly vitriolic political polarization and constitutional hardball," Seligman warns.

Profound weaknesses. Well, that doesn't sound like something we want gumming up our model democracy. Just how long has such chicanery been menacing us? Since 1887? Good god, wot!

Investigative reporter Greg Palast was among the first to recognize how MAGA Trumpians might overcome factors limiting the usual electoral-theft-by-disenfranchisement technique Republicans have used to throw away Democrat votes and steal elections. He wrote about it engagingly and thoroughly in his How Trump Stole the 2020. He reminded the reader that there are 50 states, each with secretaries of state who determine what counts as vote on election night -- there is no universal standard applied across the states. (That's one reason why, for instance, that "hanging chads" in Florida's 2000 count were disqualified there, but probably not elsewhere.) In some states, it's winner-take-all for electoral votes; in others it's split. In most states, electoral college reps must vote according to popular vote; in some states reps can vote away from the party choice (in 2020, in Washington state, three reps voted for Colin Powell). Palast demonstrated how state secretaries dramatically affect the vote counts in the swing states in 2016 and would do so again in exactly the same way in 2020. But something unexpected happened.

Covid-19 forced lifestyle changes, including in voting habits, and greatly increased mail-in votes forced the MSM to focus on them as never before. Usually they were treated as provisional votes, which meant a decision had to be made on their viability. Votes that weren't viable could be tossed and not counted and nobody would know if their vote had been counted or not.

Palast makes the spectacular claim that in 2012 he personally intervened to save Obama's bacon during his re-election. He astounds by saying that, shortly after Fox TV heads were pronouncing Obama the projected winner, Karl "Turd Blossom" Rove, sitting with the heads, called Republican Ohio state electoral representatives and told them to lose some votes to reverse the outcome of the projection. Palast writes,

Rove was going berserk, refusing to accept Obama's Ohio win. The Fox hosts, though deep Republican red, could not understand why Turdblossom would not just give up. But Rove knew what they didn't: that Obama's reelection could be reversed by one last, quite brilliant, ballot game"Rove knew that these hundreds of thousands of Black early voters were not given regular ballots. Instead, they were all given ballots that could be dis ¬ qualified. For the first time in Ohio history, just days before the election, the Republican Secretary of State had secretly ordered a ballot switch for earlyi.e.. Blackvoters. [checkout pages 157-163 for an eye-opener]

January 6 seems like a one-off silliness easily fixed compared to that national crisis that Palast describes in his book. Imagine the above scenario replayed over and over in a swathe of states. And not always Republicans at work. Palast shows how hundreds of thousands of votes for Bernie were "disqualified" by California's Democratic secretary of state, Alex Padilla. (See Ted Rall's take on this in his comic book insert in Palast's book, p.196).

In 2020, Palast saw the effects that Covid-19 would have on the Fall election and how Trump handlers were scheming to find a back up plan to keep him in power should the election be unadulterated this time around and all Black votes were unintentionally counted. He would try to invoke Article XII of the Constitution, wherein the decision of who would be king would reside solely with elements of the House Representatives -- this achieved by forcing a delay in the reporting, by just some states (even one!), in getting their electoral college results to DC in time for the certification that took place on Jan 6. Palast explains what happens next:

Any delay in the process would mean thatTrump stayed in office -- as the 2020 results weren't certified, therefore Biden wouldn't be able to assume office. Holy sh*t!

What's truly frightening is that despite the more intensified focus on making sure the usual disenfranchised voters were kept to a minimum, leading to Biden's victory, Trump almost won anyway -- four states were within 1% difference in polling results and were recounted. Had the Republicans been able to work their magic in the usual suspect states, including Pennsylvania, Georgia, Arizona, and Wisconsin, Trump would still be bringing down the gene pool, single-handedly.

The astute observer of these clowny days with meatballs might worry that the silly twat show on January 6 could be used to create new, unnecessary domestic terrorism laws. I mean, if the 'QAnon shaman' with horns puts fear into your heart as a revolutionary -- don't you think, gentle reader, you should maybe consult a psychologist? Pssst, he and his lot believe that there are pizza shops out there with secret holds where missing children, featured on school milk boxes, have been enslaved and slathered and being held as topping for future pies, like something out of a Stephen King wet dream. You just point at the missing child on the menu. Their buds, the Proud Boys, would come in and drop a quarter in the table juke and out comes their pounding anthem and namesake song, "Proud of Your Boy" from a Disney musical. (A song conceit which, IMHO, was purloined from Elia Kazan's classic America, America, which I watched last week and immediately made the connection to the song). Pssst, compare that to, say, Paul Revere, Crispus Attucks ("motherf*cker, I was just freed!"), and that guy who cried Give Me Liberty or Give Me Death. Real heros. We'd actually consider new domestic terrorism laws for this? Are we daft?

January 6 is the most-overrated insurrection of all time. What the f*ck is going on when such farce is taken so seriously? Who spiked the Patriot Punch? Embattled General Mark Milley was hysterical (relatively speaking) fearing that Trump would stage a coup, like journalist Sy Hersh says a belligerent and often soused late-stage Nixon was thinking of doing (he'd say, Goddammit, where did I leave the nuke keys? And a coy Henry K would backpedal and drop them in the goldfish bowl and say, Shall we pray, Mr. President? And they would take a knee and bray.) As I recall, Trump was even going to call up the same military unit as Nixon to surround the White House but settled for the shitty black fence.

But Milley's not the only meltdown musketeer fearing mutiny aboard Mickey Mouse's East India ship. Generals are coming out of the woodwork (teak, too) calling for new precautions -- why, even "wargames" -- terrified that such an insurrection repeated in 2024 could lead to "Civil War." I'd almost like to see such a war-game. Remember the opening scene in the film Zombieland? Even NPR had their daks in a knot over the generals' warnings about coups ahead.

Hell, they hold Civil War reenactments regularly. Let's hold a pre-enactment with the Cappie Cops putting down their Dunkin Donuts this time and be-bopping the 'local losers' in slo-mo, like in the old Six Billion Dollar Man series. Like everyone says, if antifa had tried to overturn the election, after the toxic shock had worn off, there'd a-been blood. We could pre-enact that, too. Scratch and Sniff cards. Auction and bang Nancy's podium. Auction Nancy. Auction English.

You know what? Whoa, Nelly.

We don't need a Constitutional Convention for the Proud Boys or QAnon meets Domino's. Getting rid of the electoral system left over from the Civil War days merely requires Congress voting to do so -- switching to the more popular one citizen/one vote system. Gerrymandering can be outlawed. United Nations monitors can be brought in to oversee the counting of our ballots, since we, Democrats and Republicans, and the watchdog media, don't seem up to the task.

There are plenty of signs to suggest that neither party wants electoral reform, because the system is so rigged and corrupt that the rules of partisan skulduggery have created a kind of American political omerta code, preventing leaders from speaking out about seemingly obvious flaws. The feeble responses of Gore (2000), Kerry (2004), and Hillary (2016) to their defeats is more shameful, in some ways, that the regular theft of presidential elections that Palast describes, as the votes that were tossed were from their constituency -- Blacks, Latinos and university students -- decidedly Democratic in their leanings. This suggests collusion with Repubs in a system that is more show than substance.

Hillary is especially shameful in respect of her sense of entitlement. With it, she made sure that Bernie was quashed again, as the Wikileaks emails have shown, despite his very competitive run against her in 2016. Her response was, essentially: The DNC is a private corporation; the voters get no say in the rules of the game. That's one thing that points to her posture that being a poli is her business, not yours, and that she'd be in office, but looking after number one. The private email server at her house from which she wrote and received State Department emails which were off the government stream and unaccountable by the usual checks and balances, and public record. It smells of corruption and she is unapologetic, just as she is unapologetic for getting $250,000 a pop to pole dance for Wall Street, while publicly criticizing them at the same time to pander to Lefty critics of banker excesses. She was probably responsible for the way Assange ended up -- her glib, "Can't we just drone him?" not merely rhetorical flourish.

And it appears that, even after two presidential election losses,she is hinting at a third run, as the "change candidate," maybe figuring that if Joe can get in the third time why not her? Crazy. But still not as crazy as the idea of the US falling into a Civil War. Think of all the interests and parties of persuasion out there, along with a quick image of the 425 million guns in circulation in America. Did you picture it? America is so divided in so many ways already it's impossible to see anything but political annihilation. I mean, there are 120 political parties in Ukraine. 120. Here's a partial list of the majors:

Partial list of Ukraine's political parties. (Wikipedia)

Now, imagine the number of factions at each other's throats in America. Way more than 120. It could descend into chaos and madness so goddamn quick that -- why -- the military might need to be called in to quell a nervous, even terrified nation, bringing with them, of course, that built-in hierarchical order so useful during a coup. Operation Shock and Awe as 'war-game' for the domestic take-over. The neo-liberal / neo-conservative one-two we thrust at everyone else might come to give us a well-deserved cold-cocking.

In the meantime, the New York piece above that suggests that Hillary might run again, also adds, at the end, the other more frightening prospect of a Democrat Biden-Cheney ticket.

Now that would be a January 6 worth dying for.

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