An Inflection Point in American History

A Fitting Coda to a Year Like No Other

Occasionally we seem to bear witness to something important. It's the unsettling feeling of looking into the void of unwritten history and the weight of uncertainty bearing down. It makes life seem interesting. And ominous.

I was too young to remember 9/11, only the barely concealed awkwardness of a father searching for the words to describe this horror to an 8-year-old. As you get older you learn how truly difficult it is to communicate something so obvious to someone who does not have the experience to see the obvious. And how, more than likely, I will be the same father at a loss for the words to say, without shattering a beautiful innocence.

My intent here is not to compare others to children, but to find an analogy for my difficulty in expressing my fear of the current political moment and what it could mean in the modest sweep of American history. Never before have the results of an American election been attacked as fundamentally fraudulent. This is not hyperbole, it has simply not happened.

Fraud should be investigated and prosecuted if the claims of it are well-founded. Yet the Trump campaign’s lawsuits do not allege widespread fraud, they are simply targeted at particular irregularities in ballots whose cumulative vote totals could not swing the election result in favor of the incumbent. Small-scale fraud routinely happens in elections, but it's rarely enough to swing an election, and that has been that.

So there is a clear disconnect between the scope of the legal challenges and the rhetoric of the president and his allies. And then a more sinister objective comes into view. The president is not a wise man, but he is cunning in the pursuit of his perceived self-interest. Which is procuring the required store of emotional helium to keep his ego inflated. And in this instance, it's to leave no political stone unturned to avoid admitting defeat, even if he burns down the republic with him.

In recognition of the federalist ideal of sharing of power between the national and state governments, the selection of the electors who select the president was vested in the state legislatures. Our current system of awarding all of a state’s electors to the winner of a majority of presidential votes in that state is simply custom. One that exists ultimately at the pleasure of that legislature.

Hypothetically, and constitutionally, the Commonwealth of Pennsylvania could wake up tomorrow and decide the electors shall be the first twenty men in the 1980 Scranton high school yearbook. These absurdities are stopped by political headwinds that dissipate when the electorate says: “What’s the point if it's all rigged anyway?”

And so it’s been suggested, as a way to prime us for the attempt, that Pennsylvania’s Republican-controlled legislature should simply appoint its own slate of electors. It's all fraudulent anyway, so why not? If Pennsylvania were to cross this political Rubicon, then other states would likely follow. At that point, the political tailwinds pushing the GOP in this direction would be too strong to fight.

So what then? The result of Georgia and Michigan following this path would be a 284 to 254 electoral vote advantage for Donald Trump. Which would leave Trump as the election victor if the legal prerogatives of the states are recognized. But it would be a legal outcome without political legitimacy, and the Democratic slates of electors from the states in dispute would likely meet and cast their ballots for Joe Biden.

In this scenario, we have two rival claimants for the presidency, each put forward by the rival parties, with no clear way to resolve the dispute. It would be the single greatest constitutional crisis since the Civil War. Biden would have a political mandate with no legal mandate. Trump would have a legal mandate with no political mandate. And each half of the country would view their favored candidate as having both mandates.

By the process prescribed by the Consitution, the House of Representatives decides who is president if neither candidate receives a majority of the electoral vote. This is done in a special election in which each state delegation receives one vote. Republicans control a majority of the delegations, so Donald Trump would likely win and be elected president under the legally established process.

It's said that an unjust law is no law at all, and a legal outcome resulting from frivolous charges of voter fraud would be regarded as illegitimate by the losing side. Would the blue states recognize a Trump government without a political mandate? Would their base even allow them to? This outcome could look like the event that triggered the Civil War: the election of Abraham Lincoln and the refusal of the Southern states to recognize his election. Only in this case, the Democrats would have a bone to pick.

Both candidates, refusing to concede, would likely proceed as if they were both poised to take office. Biden and Trump would submit political appointees, the rival parties would boycott each other’s confirmation votes in the Senate, and the rival presidents would initiate their own inaugural ceremonies. At this point, one candidate would be a usurper, or even treasonous, for promoting a rival government. Which side would the military and federal law enforcement take? That is unclear. All that is clear is the federal government of the United States would have no legitimacy for half the country.

The endgame for this is impossible to predict, but the Trump campaign is using all of its resources to sow doubt on the election and push us to this outcome. The fact that he is willing to do this is a convincing demonstration of why he is unfit for the office and how his continued occupation of it is a danger.

As we stare down this uncertainty, there is certainty on the path forward to prevent this outcome. The Trump campaign should stop the claims of a fraudulent election without evidence, and networks should refuse to cover them. Social media networks, the greatest source of misinformation, must crack down on the sharing of heresay and unverified “news”. This is not a First Amendment infringement, which would only apply if governments engage in these activities. It's a good-faith effort by privately owned organizations to keep people from yelling about fires in theaters.

The Trump campaign is entitled to pursue legal avenues for disputed votes and irregularities, but the position of the GOP and the campaign must be this: “all legal votes must be counted and we will accept the result.” Given the number of ballots under dispute would not tip the election from Biden, there is no reason why some less skittish Republicans can not recognize a Biden victory and do as much as possible to signal that a smooth transition towards a Democratic administration is likely the only outcome.

The Republican Party outperformed Trump down ballot. There is no reason to placate the president or his base by unintentionally undermining the Constitution they say they love.

This was always the danger of a close election. Trump can now sow doubt and discord and use this dangerous game of smoke and mirrors to pull a victory out of nowhere. Or to spite his countrymen who ceremoniously rejected him. This is the behavior of a sad, weak little man, a Wizard of Oz hiding behind a curtain of bravado and slick branding. That behavior is a menace when that little man talks his way into the most powerful political office in human history.

San Antonio-based entrepreneur, marketer, and writer. Check out my site: https://ken-briggs.com/

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