Everything is Fine. Probably.
We’ll be fine. Unless everything goes poorly and American democracy is destroyed. We’re probably fine.
In 1876 in the last year of the effective (but by Democrats reviled) Presidency of Ulysses S. Grant, John Tilden won the general election over Rutherford B. Hayes. It was a close race, but of some eight and a third million votes cast Tilden took home 4.29 million. However, in the end he also only won 184 of the 369 Electoral College votes. Hayes had him beat by a single vote. Clear evidence of actual fraud and voter suppression in Florida, Louisiana and South Carolina — all states which supposedly returned electoral wins from the popular vote for Tilden — threw those 19 Electoral College votes into contention.
Meanwhile, in the new state of Oregon which had been won by Hayes, the Democratic governor argued that one of the three Republican electors was ineligible because he was a former postmaster and therefore should be replaced with a Democratic elector.
Electors for both Tilden and Hayes met, voted, and submitted their tallies in some cases signed by governors and secretaries of states and in others not. At the time the law under the 12th Amendment was that the President of the Senate (the Vice-President) would open the votes in a joint session of Congress and count the votes in the presence of Congress. However, there was no stipulation for a situation where multiple sets of tallies had been submitted and it was somewhat unclear who might take the role of the President of the Senate if there was no President of the Senate. Henry Wilson had passed away from a stroke in late November of 1875 and his office had not been filled by the time of the 1876 election.
Nearing the end of January and facing a Constitutional crisis Congress appointed an Electoral Commission to resolve the issue prior to the the inauguration in March. As a result of continued terror tactics against African-Americans the election had not been conducted in a manner which was free and fair and federal troops were still needed to keep order in South Carolina and Louisiana. In order to alleviate the crisis, Republicans agreed to withdraw those troops, increase infrastructure spending in the South, and not nominate Hayes for a second term.
Hayes thereby won the Presidency, and the Electoral Count Act of 1887 followed several other close elections codifying a means of certifying Electoral College results. However, the origin of the problem — the racist violence and suppression mounted against the then newly freed population of Black Americans particularly in the South — was never fully addressed.
And so here we are.
This is not actually a real problem or debate and there is no real reason to be worried or terribly upset about the potential future of American democracy. I think. There is, however, ample cause to be alarmed. For one we as a nation have presided over several centuries of unabated genocide and terror against people over skin colour and/or the origin of sometimes just one of their far distant ancestors. Additionally, whilst the controversy in 1876 had realistic if shameful roots, the one we are having today does not. Regardless of what very silly people on the internet will tell you the election of 2020 had no significant instances of fraud. There were likely numerous instances of voter suppression and we will need to get to that but there was not really fraud. (In every modern election there are a handful of instances of fraud but these are never numerous enough to overturn results even in exceptionally close races.)
I have laid out in previous articles here how the election process works after the general. With the election of 2016 there were issues that should have been properly dealt with within the allowances of the law and were not, but with this one there just aren’t. As I detailed, Republican electors in states where the Democratic electors were certified did attempt to meet and cast votes, but assuming the laws are upheld, by which I mean Title 3 of the United States Code which was the codified version of the Electoral Count Act of 1887, Biden will be President and Harris Vice President in 18 day’s time. There’s no actual controversy here.
But never let reality get in the way of a good Constitutional crisis.
Naturally, and as I was sort of led by the nose to predict, independent of the GOP raising absurdist and arguably surrealist objections to the Electoral College vote tallies on January 6th, Ted Cruz is apparently going forward with an attempt to audit the 2020 election. The reason I say I saw this coming is because the only argument they really have is the spurious one that the Electoral Count Act of 1887 is unconstitutional. I mean, it’s not, but that’s what they’ll argue.
I don’t think any serious person believes this will go anywhere because it is a ridiculous stunt cynically created for political and economic benefit, but so is Donald Trump. Again, probably a nothing-burger but one does not recommend playing with fire.
The way this is likely to go is that it will be raised in the Senate and House and immediately be quashed because it is amazingly stupid and pointless. But, for those of you curious as to why I always seem to be awake this does have the potential to undo the election. Without Nancy Pelosi at the helm of the House this effort could actually allow Pence to throw out Electoral College votes that do not support him even if he does not gain the approval of the House to do so. The attack will first be on the constitutionality of Title 3 and then on the electoral votes from states that Biden won.
Cruz and various other surrealist performance artists are engaging in this madness not because they actually think it will work, but because they think it will help them in their political careers. A lot of these people have been said to be positioning themselves for Presidential runs in 2024 or needing to defend themselves in 2022. But that assumes that Trump and his influence are all going to survive that long in a manner that is actually beneficial to these toadies. I don’t think that’s going to happen. I even wrote an article heralding the end of the Republican Party. I expect that regardless of all the pardons Trump and several of his adult children and their spouses will shortly find themselves incarcerated and I won’t dismiss the idea that some of them may even be facing charges of treason or international war crime.
But letting them carry on with this fool’s errand even if it is to blow up in their faces means undermining the integrity of future American elections.
The results of the 2020 Presidential election were decisive. And Trump is the worst President in American history. I would consider aside from him Polk the very worst because whilst James Buchanan is usually blamed for the Civil War (and he is not blameless) it was Polk who ultimately put the United States on a crash course for it. Trump however has done everything in his power and limited mental faculties to drive the country once again towards civil war in his troglodytic attempt to cement himself as monarch. If we are to uphold our laws and maintain our integrity then there’s no need for a Cruz’s 2020 reboot of the Electoral Commission of 1877. The 1877 Electoral Commission was needed because there was clear evidence of electoral fraud and as a result we now have laws which prevent exactly what Trump imagines he’s going to do in order to stay in power. Allowing for an Electoral Commission or “audit,” now is redundant because many of the state results in question have already survived multiple lawsuits and in some cases recounts and undemocratic because it is a clear attempt to subvert the will of the people.
If I am in any way correct regarding the Trumps’ trajectory this action on the part of Cruz et al. is a death knell for their political careers. However, allowing them to go forward undermines future American elections, will make voter suppression harder to fight, and potentially could actually overturn the results of the 2020 election. For that last to happen a number of other disasters would also have to take place. Nancy Pelosi would have to lose her Speakership for one and that’s not impossible but incredibly unlikely. Pelosi’s brilliance and resilience to one side though, we shouldn’t be in a place where the future of democracy rides on the shoulders of a tiny little grandma.
And we’ve seen this before. We didn’t support HRC and instead had fun throwing misogynist barbs at her and those who supported her. She won the Presidency but was not seated. We did not fully appreciate the tenuousness of RBG’s health and position. She held on as long as she could but ultimately passed away in September. Now we’re relying on Nancy Pelosi to hold back fascism all on her own while a number of know-it-alls once again throw misogynist barbs at her as if they remember nothing from 2016 and also the entirety of history.
It will probably be fine. But people were calling me “hysterical” in 2016 and … well we all know how that turned out. So just so you can’t say I didn’t call it if Cruz is supported in this while it is unlikely to do anything more than damage the public’s perspective of both him and democracy in general it could overturn the election, allow Trump to be reinstated, and lead to the dissolution of Congress and the destruction of the American Constitution. So, you know. It should be fine. It’ll be fine.