As we approach Election Day, I’m cautiously optimistic — not so much about the outcome of the election (it’s way too close for either side to feel confident), but rather about the durability and integrity of the process itself. The legal arguments Donald Trump used to try to reverse the election outcome in 2020 have been decisively rejected, and the legal loopholes he tried to open have been closed.
I’m not arguing that we should be complacent. We should expect MAGA lawyers to bombard courts and state legislatures with frivolous arguments to try to reverse the outcome if Trump loses — and we shouldn’t be shocked or surprised if MAGA ultimately resorts to violence like it did on Jan. 6 — but I don’t think most Americans know how well our election system has been fortified against Trump’s legal schemes. He can’t run the same playbook he ran in 2020.
To understand how we’ve changed our system, it’s necessary to understand the Trump team’s strategy leading up to Jan. 6. As I’ve explained before, it had two key components: the conspiracy theory and the coup theory.
The conspiracy theory was the election lie itself, that Trump had been cheated out of an electoral victory that was rightly his. This required him to essentially commandeer a compliant and corrupt right-wing media establishment to broadcast his election lies to tens of millions of angry and disappointed Republicans.
The conspiracy theory created the demand for the coup. Without right-wing rage, there would be no appetite to try to overturn the election. And stealing the election required a legal plan.
And that brings us to the coup theory, the actual legal mechanism for overturning the election. The core plan was called operation “Green Bay Sweep.” It was named after an old football play, which called for an end run around the defensive line.
The goal was two-pronged: to use a series of objections to extend the debate over state certification for up to 24 hours and to pressure key states to decertify their election results, granting Trump a majority of electors and reversing the outcome of the election.
The Trump team also arranged for slates of fake electors to be ready to cast ballots for Trump the instant that state legislatures invalidated the original election results. The plan depended on exploiting a foolish provision of the Electoral Count Act, the convoluted 1887 law that governed the certification of elections.
According to the Act, if a single senator and a single member of the House objected in writing to the certification of a state’s count, then the House and Senate would adjourn and deliberate over the objection. The Act did not precisely define the grounds for overturning a state election, and this ambiguity gave MAGA hope.
Operation Green Bay Sweep failed, but it failed in part because Mike Pence refused to play his part in the scheme. Had he not demonstrated integrity and constitutional fidelity on Jan. 6, America would have faced a much deeper crisis.
Imagine, for example, if Pence had declared Trump the victor. We would have potentially seen two different presidents sworn in on the same day, with Trump taking the oath from a willing judge and Biden taking the oath from Chief Justice John Roberts. I can’t even begin to think through the consequences of such a catastrophe.
Every element of Trump’s plan — including both his media and legal strategy — is less feasible today. Each branch of the government has responded to Trump’s coup attempt, and his ability to challenge any election outcome has diminished.
Let’s start with the first element of his plan — leveraging right-wing media to tell his lies. A cascade of defamation litigation has imposed extraordinary costs on dishonest right-wing media outlets. Fox, most notably, agreed to pay more than $787 million to settle defamation claims brought by Dominion Voting Systems. Gateway Pundit, a popular right-wing website, filed bankruptcy to try to protect itself from defamation claims brought by two Georgia election workers, Ruby Freeman and Wandrea Moss. It later settled those claims out of court.
The list goes on. Rudy Giuliani faces a staggering jury verdict for defaming Freeman and Moss, and on Tuesday a federal judge ordered him to transfer his New York apartment, a vintage Mercedes and dozens of other personal items to Freeman and Moss.
Other right-wing news organizations, including Salem Media Group, Newsmax and One America News Network, have made apologies, issued retractions and entered into settlements in response to their own defamatory statements in 2020.
It is thus no mystery as to why right-wing media was notably restrained after the 2022 midterm elections. In spite of MAGA’s losses — and in spite of the fact that MAGA politicians were calling the outcome rigged — right-wing media largely ignored (or debunked) their fantastical claims. The liability risk was simply too great to amplify Republican lies.
Trump wasn’t directly involved in 2022, and that certainly explains part of right-wing media’s reluctance to dive back into conspiracies — and this time around they will be much more willing to do Trump’s bidding than, say, Kari Lake’s — but the consequences are now clear.
But even if we presume that Trump (if he loses this time) can once again persuade tens of millions of Americans that the election was stolen, his legal options have narrowed considerably.
In a 2023 case called Moore v. Harper, the Supreme Court gutted the Trump team’s core legal argument. Trump’s attempted coup depended in part on a legal concept called the “independent state legislature” doctrine. According to this theory, the Constitution empowered state legislatures to act as independent, virtually omnipotent election regulators. They — and they alone — could decide how states selected presidential electors.
According to Trump’s team, this meant that state legislatures could intervene directly and unilaterally in the outcome of a presidential election and determine the slate of electors, even if the election had been conducted according to state law.
Moore v. Harper revolved around a North Carolina congressional redistricting plan, but the Republican argument that the North Carolina Legislature enjoyed essentially unchecked authority to regulate federal elections in the state was quite similar to Trump’s argument that state legislatures could directly intervene in the presidential election.
A cross-ideological 6-to-3 majority rejected the core of the independent state legislature doctrine. It held that federal elections were still subject to state judicial review and state constitutional law; state legislatures could not become rogue actors and run roughshod over existing state laws or ignore state court rulings.
But that’s not all. Congress reformed the Electoral Count Act. First, it raised the threshold for asserting objections to election certification. Under the new law, it takes 20 percent of the members of both chambers to object before Congress has to debate the objection.
The law also narrowed the grounds for raising objections and specified that the vice president’s role in the process is purely ceremonial (he or she has no discretion to block the count). The law requires votes to be counted and electors selected according to pre-existing law. In other words, legislatures have no ability to alter the electoral process or initiate a new process after Election Day.
In addition, the law establishes an expedited process for hearing federal challenges to court outcomes, and it mandates deference to both state and federal court rulings.
If the changes to the Electoral Count Act been in place during the last election, the Green Bay Sweep would have been hopeless from the start. There weren’t enough senators willing to raise objections to trigger debate, and even if 20 senators did want to alter the count, they wouldn’t have had grounds to object under the reformed law.
There is also the matter of personnel. The reformed Electoral Count Act requires the state’s executive to certify the election, and every swing state (with the exception of Nevada) either has a Democratic governor or its Republican governor has already been tested by Trump. Democratic governors will not yield to Trump, Georgia’s Republican governor, Brian Kemp, and its Republican secretary of state, Brad Raffensperger, faced down Trump once before.
I want to be very clear — I’m not writing this to say that we have nothing to worry about in 2024. Sadly, legal reform might even make political violence more likely. Trump’s team knows that it’s now virtually impossible to reverse an election outcome through the courts or Congress. They’ll file their frivolous lawsuits, of course, but they may believe that their last hope is in the streets.
Given the hysterical rhetoric around this election, including the common right-wing refrain that Kamala Harris is a “Marxist” who has “destroyed” America and may even put Christians in “gulags,” I’d be surprised if the post-election period is entirely peaceful.
We might even see an attempted repeat of Jan. 6, but this time with protesters actually using firearms and attempting a longer occupation of the Capitol. I’d fully expect to hear revived talk of secession, this time even more serious than it was after Biden won in 2020.
So no, our national peril isn’t over, but we have learned from the mistakes of the recent past. The judiciary has slammed the door shut on Trump’s most dangerous legal argument. Congress has slammed the door shut on abusing the certification process to relitigate the presidential election. But nothing and no one can foreclose the possibility of political violence. If Trump loses again, chaos is his last — and most dangerous — card to play.
Some other things I did
My Sunday column built on my newsroom colleague Nicholas Confessore’s report on the very expensive failure of the University of Michigan’s diversity, equity and inclusion efforts. After spending hundreds of millions of dollars and hiring scores of D.E.I. administrators, the school not only failed to substantially improve Black enrollment, it also failed to protect Jewish students from antisemitic harassment after the Hamas terror attacks on Oct. 7, 2023.
To understand what’s happening here, let’s turn back to Confessore’s Michigan report. He wrote that the growing D.E.I. bureaucracies “represented a major — and profoundly left-leaning — reshuffling of campus power.” University faculty members lean far to the left, yet “administrators were even more politically liberal than faculty members, according to one survey, and far more likely to favor racial preferences in admissions and hiring.”
In other words, the campus D.E.I. bureaucracy was attempting to address an almost impossibly difficult and important task from within an ideological monoculture. It was doomed to fail, and it was doomed to fail in toxic ways.
It’s not because the D.E.I. bureaucracy is leftist. It’s because it’s full of human beings. It’s a fact of human nature that when like-minded people gather, they tend to become more extreme. This concept — called the law of group polarization — applies across ideological and institutional lines. The term was most clearly defined and popularized in a 1999 paper by Cass Sunstein. The law of group polarization, according to Sunstein, “helps to explain extremism, ‘radicalization,’ cultural shifts and the behavior of political parties and religious organizations.
In my experience, the more ideologically or theologically “pure” an institution becomes, the more wrong it is likely to be, especially if it takes on a difficult or complex task. Ideological monocultures aren’t just bad for the minority that’s silenced, harassed or canceled whenever its members raise their voices in dissent. It’s terrible for the confident majority — and for the confident majority’s cause.
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