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And The War Came
EDITOR'S NOTE: A few weeks ago, I was looking for caulk on one of the high shelves in my garage, when I found a stack of about a hundred loose pages, held in place by a brick. I had never seen these papers before, but that wasn't surprising; I've only lived in this house three years, and I am still sometimes discovering odds and ends the previous owners left behind in a corner of the attic or the garage. I've no idea how long the papers were up there. The first page was covered in dust and dirt, but it's a garage, so that could mean anything.
The papers turned out to be a single lengthy document, written mostly on wide-ruled looseleaf paper in blue and black ink, with page numbers in the upper-right corners. There are only a handful of crossouts and insertions, so I have to assume that this is the second or even third draft. The document relates a series of events that putatively occurred in the United States of America. There are several graphics, which are printed out on standard white printer paper and, at appropriate places, pasted into what I have come to call The Narrative. These images were all cut very, very close to the edges, as if the author were either a layout perfectionist or trying to save paper by printing lots of images on the same sheet. In any event, these print images, common at the start of the narrative, become very uncommon later on, so that the second half is just page after page of the author's handwriting. I can only speculate as to why. Perhaps it has something to do with the way the author seems to go through pens faster as he gets closer to the end, as if he had a limited pen supply and was now scraping the bottom of the barrel.
But here's what unnerves me about these papers:
It's my handwriting.
I don't remember writing any of this. For reasons which will become obvious, I could not possibly have done so. But it's unmistakeably written in my hand, full of my weird obsessions—like the sidebar about conventions in the first section—and distinctive turns of phrase.
The Narrative is written on 79 sheets of single-spaced, double-sided, wide-ruled looseleaf, plus a few toward the end where the pages have clearly been torn out of notebooks. The sheets are identical to the still-sealed pack of NavNeet-brand looseleaf I've owned for years; the notebook paper bears an eerie resemblance to the unused pages of my college history notebook. I keep both the looseleaf and the notebook in a cabinet over my desk. (I am looking at them as I type this.) The handwriting is flawlessly me as well, right down to the distinctively crappy way I write the § symbol. It's so familiar, I can read the author's mood through the curve of his "j's". I do not like what I find there.
This is all... unsettling... especially once you consider the content of the narrative.
So, of course, I decided to blog about it.
I've transcribed (or scanned) the entire narrative. This appears to have been the author's intention; he did, in fact, include handwritten URLs in some places for me to link to. (I have done so.) At other times, especially closer to the end of the narrative, he wrote down an article title, or sometimes just a description of an article—as though he could not find it, but expected me to be able to, for some reason. I did my best, and I think I got most of them correct. I've also added a few links of my own where appropriate, particularly to statutes. Because of the strange nature of this document, I've left in all the typos and grammatical errors present in the original. Hopefully I haven't added any more of my own.
With that, I'll get out of the way and let you read this for yourself.
Looking back, the most surprising thing about it was how unsurprising each step along the road had been.
When we started out, nobody expected it to go where it finally did. Many believed it was actually impossible. Even afterward, we all understood, intellectually, that it could have happened differently.
And yet, looking back, it feels like, while history could have rewritten the details, the story was already written, the actors were cast and waiting in the wings, and the show was determined to go on, one way or another.
The calamity could, perhaps, have been deferred—maybe if it had been Michigan instead of Pennsylvania, Jocelyn Benson instead of Kathy Boockvar—we might have limped on another 4, 8, 20 years before it came. But the tectonic forces of politics—the Greek gods of our downfall—would not be denied their blood sacrifice.
Maybe we were lucky that it happened when it did. Maybe, with a few more years for the wave to build, it would have been even worse when it broke.
Or maybe I’m just trying to make myself feel better. Maybe we could have avoided it altogether. Maybe it happened because, deep down, we wanted it. Maybe we chose it. Maybe we're the stupidest, most ungrateful human garbage who ever lived.
Can I walk you through it? Step by awful step, in exhausting detail?
It's not for you, it's for me.
I want you to tell me where, in all this, reality went off the rails. I want you to point at something and say, "There! That's the weird part that doesn't make sense! There! That was outrageously unlikely!" I desperately want this not to make sense. I want to blame it all on a fluke.
For myself and for my nation, I want absolution.
The end began the same way it did in 1860: with an election.
On November 3rd, 2020, American voters went to the polls and cast ballots for the office of President of the United States.
This was never supposed to happen. The Founding Fathers established the electoral college specifically to prevent popular elections for President of the United States, because they knew such elections would be dominated by demagogues, money, and the "convuls[ion] of the community with extraordinary and violent movements" (Federalist 68). The electors were supposed to be appointed through something resembling the convention system the Founders adored,* or at least through the state legislatures. The electoral college would thus avoid the destructive, partisan hellscape of direct popular elections for the most powerful man in the country. With indirect elections for both President and U.S. Senate, direct popular elections under the Constitution were supposed to be confined to the House of Representatives.**
The electoral college was the Founders' first and greatest failure. State legislatures immediately started transferring the constitutional authority to appoint electors from themselves to The People. Within fifty years, every state but one (South Carolina) held a statewide, popular election for President, usually without even listing the names of electors on the ballot. Electors themselves became loyal, bound partisans devoted to their candidates, not the deliberative, flexible citizens the Founders had planned on. The small-r-republican electoral college, designed specifically to escape the corruption inherent in mass democracy, had been subverted into a tool of mass democracy.
Except not quite. Even though it usually functioned like a direct popular election, the electoral college system would—very occasionally, very quirkily—vomit up an electoral college winner who did not win a plurality of the votes. It is impossible to say whether the Founders “intended” for this to happen from time to time, since the whole system where individual citizens cast ballots for President is so divorced from what the Founders envisioned that the question has no meaning. But it is no surprise that, when one side wins a national popular election (that was never intended to exist), and the other side loses the national popular election but happens to win in a few specific territories that let them win the electoral college... this makes people on the losing side feel like they've been cheated.
This semi-direct election of the President was, by 2020, a well-established part of America’s unwritten Constitution. Unfortunately, by a bizarre and unlikely coincidence, the popular vote winner had lost the electoral college twice in the same generation... and, both times, the fluke benefited a Republican. Democrats came to feel that the entire system was rigged against democratic outcomes. (They were, of course, correct, but it was not rigged against democracy even a tenth as much as the Founders had hoped.)
*SIDEBAR: While the "convention system the Founders adored" no longer exists, its nearest modern equivalent in 2020 was the model the North Dakota Republican Party used to select its delegates in the presidential primary. The Wyoming GOP also got close. Democratic Party rules specifically forbade a convention system, even in the primary. Outside North Dakota and Wyoming, very nearly everything, even at the primary stage, was decided by direct, partisan, popular vote. And we wondered why our political system was seized up by demagogues, money, and violent convulsions! END SIDEBAR.
**SIDEBAR 2: Direct elections were not just supposed to be contained to the House of Representatives; popular voting was supposed to happen, specifically, in small Congressional districts, with a population of no more than 50,000 people apiece. Local issues and neighborly friendship were supposed to prevent the electoral hellscape from becoming too unbearable. A constitutional amendment ratifying this limit came within a hair's breadth of passing back in the late 1700s. Instead, by 2020, a Congressional district had more than 700,000 residents, nearly fifteen times larger than what the Founders considered a maximum. Predictably, our Congressmen were remote, distant powers most of us rarely (if ever) met, and they were slaves to campaign cash much more than they were slaves to voters, because they had to have cash just to advertise to all 700,000 of their constituents every cycle! END SIDEBAR 2.
Thus, on the first Tuesday of November 2020, scores of millions of Americans did what they mistakenly considered their “civic duty” and marked ballots for either Donald Trump or Joe Biden to serve as the next President of the United States.
The whole thing played out eerily close to the way it had four years before. Maybe that's the least believable part of all this: that, after the madness of spring and summer 2020, politics would revert to the mean in a matter of months, even with the pandemic drum continuing to beat steadily into the fall. But the long-term memory of politics is chronically defective, and deep polarization arguably makes reversion to the mean faster and stronger than it is in normal times.
President Trump, as before, was personally unpopular and faced wide disapproval. He had been impeached early in the year, and a narrow plurality of voters had supported his conviction and removal. But Trump enjoyed the benefits of an economic rebound after the covid-19 lockdowns ended, backlash against continuing street violence and vandalism, and a weak opponent in Biden. He had a hard core of supporters, and millions of voters who disliked Trump cast ballots for him anyway, because they feared his opponent even more.
Biden, building on the Hillary coalition, had led polls all year, and he still enjoyed a clear (but narrowing) edge in the final polling. He was very likely to win the national popular vote. Yet everybody knew that, thanks to an accident of demography, too many of Biden's core supporters were concentrated in a small number of “safe” states that could have no impact on the electoral college outcome, while Trump’s core supporters were overrepresented in the "battleground" states that would decide the election. The electoral college was likely to be close.
Election projection models were far more conservative than in 2016: despite similar polling, the Upshot and Daily Kos both showed Trump with a 35% chance of winning, much higher than their 2016 estimates. Sam Wang, overcorrecting, gave Trump 50% odds. The Huffington Post abandoned its election model altogether. Nate Silver’s FiveThirtyEight, which alone had correctly assessed the data in 2016, gave Trump a 30% chance in its final forecast, just like it had four years earlier.
Election Night was long and tense. The New York Times’ dreaded “needle,” reading and distilling results from hundreds of precincts in real time and comparing them to benchmark targets for each candidate, first seemed to swing toward Biden. Across the country, blue tribespeople felt hope for the first time in years. But then the Midwest and Pennsylvania results started coming in, and the needle started going the other direction.
This was exactly what the election projectors had feared, exactly why they'd hedged their predictions. Despite their best efforts to improve the polling, especially by Nate Cohn of the Times, the county-by-county results were showing more Midwestern white-working-class voters coming out to vote than expected—and late deciders were once again breaking for Trump. At 10:30 PM Eastern Time, the needle started moving toward Trump. Just before midnight, the needle announced the race was a tossup. By 4:30 AM, it was all over: President Trump had been re-elected.
It was closer this time. Although the full national popular vote wouldn't be counted until December, Biden won it by 2.9%. (Clinton won it by only 2.1%.) Most of Trump’s 2016 map held, but Biden took back Michigan, Wisconsin, and the 2nd District of Nebraska’s sole electoral vote. Trump clung to Pennsylvania by a razor-thin margin: 3,407 votes out of nearly 6 million cast. But that was enough. Trump had 277 electoral votes and a second term.
Under Pennsylvania law, the close margin meant an automatic recount would almost certainly occur (Purdon's PA 25 P.S. 14.XIV.3154(g)), but few observers considered it likely to overturn the results. This wasn't Bush/Gore in 2000, where the election outcome hinged on barely a thousand hanging chads. This was a 3,000+ vote margin in a state that'd made good use of the Help America Vote Act and simply didn't have the kinds of voting problems Florida had had in 2000. Nevertheless, bowing to the demands of his base, Biden decided not to concede the election on Election Night; he would await the final verdict of the recount.
Meanwhile, Democrats expanded their control in the House of Representatives, but were unable to take control of the U.S. Senate, where Republicans lost two seats (but won Sen. Doug Jones' seat in Alabama) to retain a 52-seat majority.
As dawn broke on November 4th, 2020, America’s white progressive class contemplated revolution, suicide, and genocide, in that order. White progressives made up only a fraction of Biden's coalition, to say nothing of the nation as a whole... but their influence on American discourse was outsized (as usual), because virtually every single person in America’s media and academy was a white progressive, as were the majority of Americans in other power centers – corporate CEOs, NGO coordinators, white-collar professionals, and so on. White progressives were disproportionately engaged in this election and hated Trump more than anyone.
They were also among the most isolated factions in America. Many of them believed they didn’t know a single Trump voter, and instantly unfriended anyone who proved them wrong. They controlled the commanding heights of culture, which gave them the power to make their own sometimes-bizarre predilections dominate the national conversation – like the conspiracy-theory reporting on the Mueller Investigation, which this class overhyped only to be deeply disappointed in the results.
For these white progressives, the morning after Election 2016 had been a day of shock, alarm, and fear. They had been too insulated back then, and hadn't seen Trump coming, even with the polls showing a close race.
The morning after Election 2020 was different. While they were, in some ways, even more insulated than before, white progressives had nevertheless been prepared for Trump this time. They had dared to hope it wouldn't happen again, but they knew it could. America might return like a dog to its vomit... and so it had. There was no shock, and (after four years of Trump governing basically like a normal Republican, except with severe Tourette’s) no real fear. New York magazine still published the requisite, “I am a minority and I now I am afraid of Americans” article it always ran when a Republican won anything anywhere, but nobody really believed it. Instead of fear, white progressives felt something uncomfortably new: despair and hatred.
Progressives had been able to tell themselves that 2016 was a fluke, a narrow but monstrous win under an antiquated, quirky electoral system over a bad candidate, Hillary Clinton, whom even many progressives disliked. But this? America had once again chosen the monster, after everyone had spent four years getting to know that monster (white progressives more than anyone else). America had made this choice even against the affable, aw-shucks Joe Biden.
It wasn't fair! Trump had lost the popular vote the first time but won anyway. He'd been caught obstructing justice in the Russia Investigation but wriggled out thanks to Bill Barr's expert manipulation of the media. He'd been impeached and very obviously should've been convicted, except Moscow Mitch, not content with stealing Antonin Scalia's Supreme Court seat from Merrick Garland, had cleverly tailored the rules to help the President escape scrutiny on the Senate floor. He'd killed two hundred fifty thousand Americans in the covid epidemic! And now he'd lost the popular vote but won the presidency again? The system was rigged! And it was rigged in favor of this unspeakably evil man!
Agree or disagree, that's how they saw it. For tens of millions of Biden/Harris voters, this was the moment their faith in the American Constitution—and their fellow citizens—truly and finally broke.
The agonies played out in print all day, and the next, and the next. I did the same spiteful, childish thing I did in 2016: despising both candidates, and long since resigned to despair over the Constitution, I lapped up as much schadenfreude from the likes of Jezebel, HuffPo, and the New Yorker as I could.
On November 6th, 2020, at 9 o'clock in the morning, while the rest of the country continued to argue about the deeper meaning of President Trump's re-election, the Pennsylvania County Boards of Elections met in small conferences rooms across the state to begin the work of counting ballots (Purdon's §3154(a)). The automatic recount could not officially commence until this first "unofficial" count was completed (in order to trigger P.S. §3154(g)(1)(i)), which simply meant Mr. Biden had several weeks to write his concession speech.
In Pennsylvania's 2020 election, virtually all voting was conducted either on a paper ballot or on an electronic voter machine with a voter-verified paper trail. This was thanks to a 2018 order by Acting Secretary of State Robert Torres to require a paper trail on all voting machines by the end of 2019. (This was partially due to Jill Stein's attempt to force a statewide recount in 2016.)
This was a big leap forward: the old electronic voting systems made recounts impossible. The only thing you can do to "recount" a paperless electronic voter system is crack it open and vote a few thousand times on it to try and catch it altering results. Of course, any semi-intelligent hacker able to install malware on a voting machine has any number of ways to avoid detection, even in an audit. There was still public confusion, of course: many people still heard "voter-verified electronic voting system" and thought of hackable, non-recountable Diebold machines from Ohio 2004. And it was discovered just after the election that a handful of precincts had not, in fact, fully complied with the order and still had one or two paperless electronic voter machines operating on Election Day. But only a couple hundred people, total, had voted on these machines. Pennsylvania's voting machines themselves were no longer a serious threat to election integrity, and remained a problem only in the minds of conspiracy theorists.
Unfortunately, in a post-Snowden, post-Emailgate, post-Russiagate age, we are all conspiracy theorists.
On November 8th, 2020, neuroscientist Sam Wang (who moonlights as a popular left-wing elections blogger) wrote a long, jargon-filled post in which he described unusual statistical discrepancies in the election-night reported returns from several Pennsylvania precincts. He noted several pairs of neighboring Pennsylvania election districts where, in recent elections, results had been very consistent with one another, but had not been in this year's election.
For instance, in Easton Ward 1, looking solely at history and demographics, Biden could have expected to win by 28 points. In neighboring, almost-identical Easton Ward 2, Biden should have won by 30. However, in this election, in Easton Ward 1, Biden won by 28 (as expected)... but, in Easton Ward 2, Biden only won by 17. Still a blowout, but a lot less of a blowout than expected, and with no obvious reason why one half of Easton would suddenly move significantly toward Trump while the other half stuck with Biden.
Wang observed several areas where this happened, some in deep red territory, some in deep blue territory, none in the most hotly contested districts—and every instance on his list favored Trump. "I'm not accusing anyone of anything," Wang concluded. "There are lots of possible explanations for this, most of them perfectly harmless. But one explanation I don't think explains this behavior is statistical noise."
Left-wing Twitter exploded with conspiracy theories. As happens after every election, quite a number of people (whether they lived in the affected precincts or not, whether they were Pennsylvanian or not) came forward to say that they had been prevented from casting a vote because their name wasn't on the voter roll. This aggrieved group crashed into Sam Wang's aggrieved group and they made beautiful, conspiratorial grievance babies together. They made their narratives reinforce each other even when they didn't.
The night ended with Wang and Nate Silver getting into a public Twitter fight about Wang's data, with Nate insisting:
(Yes, I got that screenshot almost immediately after he posted it.)
On November 9th, 2020, Silver followed-up with a thorough, slightly personal rebuttal of Wang's findings on FiveThirtyEight. One of Silver's key points: none of the affected districts used paperless electronic voting, so, even if there was error or fraud, it would be caught during the automatic recount.
Almost nobody read Silver's article. Those who wanted to believe Wang's theory dismissed Silver's article as a continuation of Silver's longstanding quiet feud with Wang; those who didn't want to believe Wang's theory had already dismissed it out-of-hand.
Just like after the 2004 election, there was now a devoted cadre that (despite Wang's caveats) fervently believed the Democratic candidate had been cheated out of the presidency by subtle ballot fraud.
To be clear, almost nobody outside left-wing Twitter was paying attention to this. The national conversation, dominated by upper-class white progressive media professionals, was still very much, "How did we let this happen again?!" But white progressives, particularly in the media, are exactly the sorts of people who hang around Sam Wang and Nate Silver's Twitter accounts. Jezebel and The Verge covered the dispute. Both outlets cast doubts on Silver's motives, while downplaying how badly Wang had missed the 2016 election result. The idea that something might have been hinky about the results crept slowly into general white progressive consciousness.
From November 6th until November 11th, 2020, the Pennsylvania county boards continued to meet, in various times and places that had been determined by each board and published in local newspapers before the election. Although every county was now saddled with election observers from both the Biden and Trump campaigns, ready to pounce on any irregularity, the boards continued to do their work: They counted votes. They received absentee ballots from overseas and military personnel, and counted those, too. They worked hard to resolve provisional ballots before a 5 PM deadline on November 10th.
What's a provisional ballot, you ask? Under Pennsylvania law back then (25 P.S. § 3050(a.4)(1)), when a voter's registration or photo identification did not match the voter rolls, the voter could cast a provisional ballot. The ballot was sealed in an envelope and was not counted until either the voter proved his or her identity to the county board of elections or (more commonly) the county board of elections was able to identify the voter from county records. (For details, see here.) In the 2016 election, 26,451 Pennsylvanians cast provisional ballots (see page 28 here). Only 7,994 of those ballots were eventually accepted and counted in the election.
In the 2020 election, Pennsylvania voters cast 31,983 provisional ballots. That was a bit higher than 2016, but very much within the realm of random variation. No one attached any significance to it, other than Twitter conspiracy theorists.
Throughout this week, needless to say, President Trump taunted Mr. Biden, Senator Harris, their supporters, the Pennsylvania governor, "pencil-necked Pennsylvania vote counters," and anyone else not yet ready to officially announce President Trump had won a second term. Biden, who had let Senator Harris do much of the talking in this race, stayed quiet, while Senator Harris spoke for the campaign and insisted they simply wanted to "let the democratic process work."
Again, most news junkies were paying attention to the daily Trumpian dramas, not the quixotic details of a barely-contested electoral count. Do you remember Jill Stein's three-state recount of the 2016 election? Exactly. Few noticed and fewer cared.
On November 11th, 2020, the county boards of election had their deadline... and, unlike Florida in 2000, they all finished counting on time. Unofficial Pennsylvania returns showed Donald Trump had defeated Joe Biden by a margin of 2,608 votes—a gain of 799 votes for Biden since Election Night.
Of the 31,983 provisional ballots cast, with both campaigns closely scrutinizing the process, 9,105 were ultimately accepted and counted. These votes provided much (but not most) of Biden's gain.
The margin was thus smaller than the election night returns, but not nearly small enough to give Biden the presidency. Therefore, presidential electors sworn to support Trump were due to be issued official Certificates of Election and sent off to support Trump in the electoral college.
But not just yet. Secretary of the Commonwealth Kathy Boockvar (in other words, the Secretary of State), obeying state law, ordered an "automatic" statewide manual recount due to the close margin. County election boards had been preparing for this recount since election night, and started the following day (November 12th). They had until Thursday, November 26th to complete the full recount, and until Friday, November 27th to file the results with the Secretary.
So far, so good. Up to this point, what we saw was what all close, high-stakes elections with national implications looked like. There's always some dispute about the votes somewhere (remember Ohio 2004?), and it is worrisome how much traction those disputes get in the age of Twitter and Facebook (remember Georgia 2018?), but our political system can handle that. We get it resolved, and our political parties still have just enough clout to quiet the conspiracy theorists.
But, on November 13th, 2020, the Washington Post’s ran this front page:
According to the story, several agents at the National Cyber Security Division had found evidence in election-day network traffic that suggested foreign network invasion. A leaked email thread between high-level members of the U.S. intelligence community provided details: over the three months before Election Day, especially the final two weeks before the vote, a highly sophisticated hacker group had penetrated a number of Pennsylvania's election systems. According to the memo, the attack appeared (based on network traffic) to be centered on urban, predominantly African-American areas. The attack bore the characteristics of Fancy Bear, the cyber-espionage group widely believed to be a unit of the Russian GRU. Exactly what the attackers had done (assuming this assessment was even accurate) was unclear, but it seemed clear that it was more than the probing of American election systems that happened in 2016.
Of course, the first question the Washington Post asked was whether the Russians had hacked Pennsylvania's paperless electronic voter machines (all three of them or whatever) and altered the results. However, because so few paperless machines were left, any voting machine hack large enough to affect the outcome of the election would have been very obvious to any statistical audit. ("You mean, like the one Sam Wang did last week?" asked the hosts of Chapo Trap House.) Moreover, the paperless machines were scattered all over the state and not connected to the Internet—or each other. While it was possible they had been subverted, statisticians assured us that only a few dozen votes might have been flipped on paperless machines without detection, and it would have involved either a lot of human agents on the ground in Pennsylvania, or one agent with impeccable burglary skills doing a whole lot of driving over several weeks.
Far more alarming was the amount of foreign activity that seemed to be centered around county records offices. American efforts to secure the vote over the past ten years have mostly centered on preventing hacks of voting machines. But county-level cybersecurity is weak in lots of other ways, and those ways have been largely overlooked. The county records offices that had been attacked were the official source of information used to identify voters at the polls, and, afterwards, to determine whether to count a provisional ballot. Often, they were the only source of information available to the government regarding provisional ballots.
Suppose Mrs. Dara Smithson of 5112 Spruce Street, West Philadelphia, reported to her polling place to vote. Further suppose that hackers tweaked county records to show that Mrs. Smithson actually lived at 5013 Springfield Avenue in a nearby precinct. According to Pennsylvania rules, when Mrs. Smithson went to vote, she would get up to the front of the line, then be informed that she is not registered to vote—the voter rolls would not include her.
If that could be sorted out, and her "correct" address located in the system, Mrs. Smithson would be instructed to go vote in the other precinct. Recall that these are largely poor, black, urban neighborhoods, where polling places can be scarce and voting lines long. If Mrs. Smithson continued to insist that she was voting in the correct precinct, she would be allowed to vote a provisional ballot.
Mrs. Smithson's ballot would then be considered by the county election board during one of its post-election hearings. If Mrs. Smithson showed up to the hearing with a utility bill or some other document proving her address, her vote would almost certainly be counted. But few voters actually showed up to these hearings, certainly not poor voters who could barely get time off to vote on Election Day in the first place. Most provisional ballots were resolved by checking county records—and, since Mrs. Smithson's address would be wrong in the county records as well as the voter rolls, her provisional ballot would be rejected.
Now, to be clear, there was no actual Mrs. Dara Smithson. The Washington Post made her up as an example. This is how, in their telling, an attack against a Pennsylvania voter might work.
If the hackers did this a few thousand times, they could make voting so difficult or impossible for certain voters that they would be disenfranchised... and the hackers could probably do it without being detected, if they were judicious about where and how they did it. Most versions of Mrs. Smithson would never get to the point of casting a provisional ballot at all, much less showing up to a later hearing; they would simply be turned away at the polls and vanish into the Pennsylvania night. Indeed, it's been suggested since at least 2018 that Pennsylvania is uniquely vulnerable to this kind of attack.
Another option? Hackers could fake county records to resurrect a bunch of voters from the dead, request absentee ballots for them, and vote in their names. County records would offer no reason to reject those ballots. Pennsylvania had just recently reached a compromise and enacted no-excuse mail-in absentee voting—ripe for hacker exploitation.
In some cases, it would be possible to verify the integrity of county voting records by checking backup systems, where old (presumably unhacked) data is stored. However, every county had its own backup policy. A dozen counties kept no meaningful backups. Another dozen kept their "backups" on a neighboring server on the same network, every bit as vulnerable as the primary. A dozen more kept good backups, but with a retention policy of only 1-4 weeks. Since the attacks took place up to 3 months prior to the election, the relevant backups were gone.
Some upscale counties with serious I.T. departments kept backups in S3 GovCloud, an Amazon service that is well-regarded among I.T. professionals for being both cheap and secure. The state government (which had the "master" voter file for the whole state) did something similar.
But "secure," in S3's case, meant secure against bedroom hackers and corporate spies; could S3 really stand up to a serious foreign attack, especially given lax security practices from the counties in question? Amazon insisted all election data stored in S3 was protected inviolate, and the story in the Washington Post (owned by Jeff Bezos, who also owned Amazon), treaded carefully around that question. But thousands of I.T. pros, me included, were very skeptical. If Fancy Bear wanted to compromise voter data on S3, there was a good chance they'd find a way.
So, really, the only counties where we could trust the backups—thus, the only counties where county records could actually be used to confidently identify instances of hacking—turned out to be a few rural counties without enough money to fully computerize. Their primary records were still stored on the most secure data storage system we have: paper, locked in filing cabinets in the archives of secured county records buildings. These "backwards" counties got closer than anyone to Bruce Schneier's election security recommendations. Everywhere else... it was possible that a foreign power had messed with the conduct of the election.
November 14th, 2020: Chaos. Nobody really knew anything, but the political moment and the huge range of possibilities made it so that everyone with a Twitter handle thought he knew everything. On the extremes, "Trump phoned Putin to ask him to hack our election!" and "The deep-state National Cyber Defense Agency fabricated all of this in order to stop QAnon!" The rational center was no less prone to outracing the evidence, though: "It's likely Russia did at least some disenfranchisement of Democratic voters," to "The few backups we've managed to check have showed total consistency with their primaries, so the hackers were probably just looking around, not changing things." (Notice how right-of-center voices always referred to them as "the hackers" and left-of-center as "the Russians.") Lots of viable theories were asserted as fact without evidence, with the burden of proof always being shifted to the other side.
Because white progressives control the media, their favored conspiracy theory ("Russia likely disenfranchised some voters") was presented in mainstream media as the true, rational, evidence-based narrative, while all other interpretations of the facts were largely dismissed, contemptuously, as either ignorant or opportunistic. Ross Douthat's Sunday column, published in the early evening of November 14th, was a caution about this kind of groupthink among his fellow columnists. Nobody read it, except his fellow co-hosts on The Argument podcast, who politely but firmly dismissed it on the air.
Around the white progressive water cooler, Sam Wang's article from November 8th suddenly started getting far more attention and a hundred times as much traffic (despite not really having anything to do with the current story). It was suddenly covered in the New York Times, Los Angeles Times, Newsweek, Buzzfeed, and Teen Vogue.
The Pennsylvania recount struggled to continue, as every county in the state was suddenly called upon to give a full account of its voter registration and security systems. The recount instantly moved from being a sideshow to the absolute center of national attention. Many voters now considered the recount the most important thing in the world. Others pointed out that, if the election system really had been subverted in the way the U.S. Intelligence Community suspected, then the recount was pointless: there was no way the recount could, even theoretically, count all the disenfranchised voters who either had their provisional ballots rejected or were simply turned away at the polls. If the hack went as far as many now believed, the election results were irretrievably tainted.
In mid-afternoon, Director of National Intelligence Mark Ratcliffe (a former Republican Congressman) and Election Security Executive Shelby Pierson held a press conference.
It was visibly obvious that Pierson, though carrying herself with poise and exuding competence, had not slept in at least two days, since well before the story broke. It was her job to prevent something like this from happening—but, of course, no single minor cabinet undersecretary could, by herself, with gravely inadequate funding and little direct authority over states, wrangle tens of thousands of state and federal officials into running elections with adequate cybersecurity. The position of "Election Security Executive" had only been created 14 months earlier, barely enough time to get settled in the vast national bureaucracy. Pierson was, in just the past twenty-four hours, becoming an object of hatred among #TheResistance, but, watching her up on that podium, my heart absolutely broke for her.
Ratcliffe and Pierson explained... very little, it turned out. They acknowledged that the Washington Post's reporting was accurate and that several U.S. intelligence professionals believed that network traffic indicated a hacked vote. However, Ratcliffe and Pierson went on to explain that there were opposing viewpoints within the intelligence community that had not been aired in the WaPo story.
Similar network patterns appeared in safe states like Vermont, where there would be no point in hacking the vote. (It would either have no effect on the electoral college or so brazen as to be instantly detected.) So did these network patterns really indicate vote-hacking? The United States was not yet prepared to say.
Yes, there were some indicators that Fancy Bear (Russia) was behind the attack, but there were also some common indicators missing, and other hallmarks suggested that Magecart was responsible. Magecart was a hacking group devoted to identity theft and other financial schemes; it was not believed to be a state-sponsored hacking organization. There was still a real possibility that the attacks were simply stealing voter information to sell on the black market. (That would still be bad, of course, but it would mean the election had not been manipulated to re-elect Trump.)
So the Washington Post's reporting was accurate, but incomplete. Whoever had leaked the information had shown only one side of a live controversy within the intelligence community. The one certainty, at this stage, vowed Pierson, was that she and the rest of the Intelligence Community would investigate this to the fullest extent:
Overall, the press conference's lack of clear answers served only to fuel the empty certainties of the pundits and their millions of their comment-section acolytes.
While the Pierson/Ratcliffe press conference was still in progress, President Trump tweeted:
...thereby undermining pretty much everything Ratcliffe and especially Pierson were saying. (Also, that's not what the Constitution says about treason.)
One thing everyone agreed on: we all wished this had happened in Wisconsin or Minnesota instead of Pennsylvania, because their statutes are much, much easier to read online.
November 15th, 2020, a Sunday, was the day the court cases started. Much like the court battles over the Florida vote in 2000, the conflicting claims and counterclaims in various courts at various levels quickly became confusing, even for those living through it. (For example: technically, Biden and Trump never filed lawsuits; the Pennsylvania slates of electors pledged to each candidate sued on the behalf of each campaign. These cases were full of technicalities like that.) Detailed filings are available today on both the Red and Blue forks of PACER, and Blue RECAP has made most of them available for free. However, for this document, I will just try to be clear about the bottom line. It's still going to get wordy, and I'm sorry about that.
In the first case, Biden v. Pennslyvania, the Biden Campaign asked the courts to order a re-vote—a complete re-do of the 2020 presidential election in Pennsylvania. Biden's campaign argued this was necessary because the election interference made it impossible to know who had "really" won Pennsylvania.
If the courts refused to grant a full re-vote, Biden's campaign asked that, at the very least, the courts order that all provisional ballots be counted, not just the small fraction of them that met the legal standard for being accepted. On Meet the Press, Senator Harris defended both claims, staking them on the principle of "one person, one vote," a rule the Supreme Court invented in 1962 based on a creative interpretation of the 14th Amendment.
Nobody knew what the rejected provisional ballots said. But, given the huge number of provisional ballots (nearly 32,000), the closeness of the election (only 2,608 votes), and the demographics of provisional voters (they're most often poor and black), everyone understood that there was a real possibility that counting all provisional ballots would give Biden the win.
The Biden campaign soon produced three voters from each county who said they'd been turned away at the polls due to an error in the voter rolls. Why three per county? Because, under Pennsylvania law, that's the threshold for alleging voter fraud. (25 P.S. § 3154(e)) Since a recount was already underway, this made no legal difference, but it was symbolically powerful, cementing the idea of a widespread campaign to disrupt American democracy in the mind of Democratic voters.
Republicans pointed out that "turnaways" happen all the time in our elections, and aren't evidence of election interference. Turnaways are usually a sign of voter error, election judge error, or technical error—evidence of incompetence, not fraud—and that the whole reason for the provisional ballot system is to allow these voters to cast votes anyway (as long as they can prove the error).
Plus, as the far-right blogosphere argued, the process is designed to detect and deny fraudulent voters. Wasn't it a possibility that these turnaways really were trying to cast votes illegally and had been correctly turned away? By the end of the day, six Breitbart reporters were investigating every single person Biden had introduced as a "turnaway." Every inconsistency they found—and, naturally, there were several—was blared at the top of the Breitbart website as "MORE PROOF OF BIDEN VOTER FRAUD."
Under Pennyslvania law, Biden should have started this lawsuit in the Commonwealth Court of Pennsylvania (25 P.S. § 3157(a)). However, the Commonwealth Court was controlled 7-2 by Republican judges. Biden's campaign cleverly reinterpreted Pennsylvania law to allow him to file suit in all 60 Pennsylvania Courts of Common Claims instead. The lower-level Courts of Common Claims were controlled by both parties in different places, and a victory in any of them would generate good headlines for Biden.
The Commonwealth Court quickly stepped in, stopped the Common Claims cases, and forced the Biden campaign to come before the Commonwealth Court... but not before Biden won a number of small victories at the lower court level. In particular, the 5th Judicial District and (weirdly) the 36th District issued emergency injunctions ordering their counties to begin counting rejected provisional ballots. The 2nd District (populous Allegheny County) ordered the county to begin preparations for a re-vote. Biden had won a tactical victory: he now had a number of judges on record supporting his view of the election. The press was happy to agree.
This all took place over the course of three days. By close-of-business on Tuesday, November 17th, the Commonwealth Court had asserted control of the process, and scheduled emergency oral arguments for Thursday the 19th.
There was no news on the hacking investigation in that time, although juicy rumors and putative leaks were everywhere—and not just on Twitter. The colleagues who sit near me at work (all Biden voters, but not jerks about it... and all programmers, to boot) kept discussing it while they thought my headphones were on too loud for me to hear. They kept presenting more evidence to each other that Fancy Bear, aka Vladimir Putin, was to blame. Needless to say, my more right-leaning programmer friends, on Facebook, were proving to one another that it was all just Magecart phishing for identity theft. Commonwealth Court would be ruling on the basis of a few major press stories, Pierson's press conference, and a world of speculation.
Before Commonwealth Court could rule, however, Pennsylvania's executive branch got involved. On November 18th, 2020, Governor Tom Wolf, a Democrat who had campaigned with Biden and Harris eleven times during the election, announced that Pennsylvania would accept the judgment of the court system. However, he stated that there was a "reasonable possibility" that the courts would grant Biden's request for a revote. Therefore, Gov. Wolf ordered Secretary of the Commonwealth Kathy Boockvar to begin preparations for a revote... just in case.
Boockvar complied, announcing in a statement that "Pennsylvania's wonderful election workers in my office and in counties throughout the state will work day and night to make a truly free and fair election for President possible, so we will be ready if and when the courts give the word. No effort and no expense can be spared when the basic integrity of our democracy is under attack."
It normally takes months to organize a revote. In the 2018 midterm election, major fraud occurred in North Carolina's 9th District. An investigation overturned the results and ordered a revote on February 21st, 2019. A new primary was held on May 14th. The revote was finally held on September 10th, eight months after the revote was ordered, nearly a year after the original election.
There was no time for that here. Under the U.S. Constitution in 2020, the electoral college would vote on December 14th, 2020, and this date was not flexible. If Pennsylvania failed to resolve its dispute and certify electors by then, it would simply be excluded from the presidential election, and Biden would win the electoral college 261-257. (This has not happened since 1864, when several states were taken over by insurrectionists and were not able to appoint electors.)
Sec. Boockvar, then, was really really under the gun. She needed at least ten days to get a revote ready; the ballot printing and shipping alone would require 24/7 work from lots and lots of union workers. Under ordinary Pennsylvania law (25 P.S. § 3154), she also needed 24 days after any revote to count and (potentially) recount the votes before certifying results. So she needed 35 days to set up, hold, and count a revote. But the electoral college voted in just 26 days.
Boockvar (also a Democrat, appointed directly by Gov. Wolf but confirmed by the Republican state senate) said she could get it done. Citing a wide variety of legal precedents, some very applicable, some much less so, Boockvar said that, due to the constitutional necessity of getting a revote done before December 14th, the Supremacy Clause of the Constitution and other provisions would allow her to waive the usual timelines for counting and recounting votes. If the courts agreed with her, Boockvar said, Pennsylvania could hold a new election for President of the United States on Saturday, November 28th, accelerate the vote-counting, and get it all done in time for the electoral college vote. They'd miss the electoral college "safe habor" date (which prevents Congress from objecting to certain kinds of electoral votes), but they'd get electors appointed on time.
Boockvar's plan was breathtakingly ambitious... but it was plausible. She ordered that preparations begin immediately in all counties and precincts—again, just in case the courts agreed with Biden.
Within four hours, the Biden campaign had added Boockvar's detailed timeline, almost word-for-word, to its list of legal demands in Biden v. Pennsylvania.
Within six hours, the Drudge Report had posted pictures of Gov. Wolf leaving the Bellevue Hotel that morning. The Bellevue Hotel was where Roger Lau, Joe Biden's campaign manager, was staying.
Within eight hours, the Trump campaign had launched its own lawsuit in Commonwealth Court, Trump v. Boockvar. Trump demanded that Boockvar immediately "cease all preparations" for the revote, arguing that a revote should not and could not be ordered on such thin evidence, especially not on the "illegal" timeline Boockvar had proposed.
On Thursday, November 19th, the Commonwealth Court heard oral arguments in Biden v. Pennsylvania. Presiding Judge Mary Leavitt, a Republican, following the court's IOP, ordered that all nine Commonwealth judges participate in the case. Although Judge Ellen Ciesler (one of the court's two Democrats), appeared to be on the fence in oral arguments, a very short opinion was handed down by the end of the day: Biden lost on a 7-2 party-line vote on all claims. Commonwealth Court denied his request for a revote and his request to count provisional ballots. "Pennsylvania, through its elected representatives, has ordained reasonable laws regarding the timing and conduct of free and fair elections," Judge Leavitt wrote, "and its laws include no provision for a revote, nor for the counting of invalid provisional ballots, nor for the waiver of the election schedule. It is not for this court of unelected judges to replace the People's judgment with our own, especially not by changing the rules of the game after the score has been counted."
The Commonwealth Court also issued an emergency injunction in Trump v. Boockvar. They decided that there was "no reasonable possibility" of a revote. Expanding on an officially non-binding precedent set by one of the orders in Bush v. Gore, the court ordered Sec. Boockvar to stop preparations for a revote. The vote on this point was 6-3.
Biden and Boockvar both appealed to the Pennsylvania Supreme Court.
There was still no word from Pierson or the U.S. intelligence community. Because James Comey's preliminary letter during the final week of the 2016 election had ended up drastically changing the election outcome, Pierson and her team had decided they would carry out their investigation completely (if quickly) before sharing any preliminary findings. They did not want to be the new James Comeys. But their silence allowed more and more rumors to take root, especially in the hearts and minds of anti-Trump journalists who had fallen for Robert Mueller Fever a couple years earlier.
On Friday, November 20th, the Pennsylvania Supreme Court summarily reversed the lower court's order in Trump v. Boockar. Saying, "preparing for the possibility of democracy is never an injury," the state supremes allowed Sec. Boockvar to begin preparing for the revote again. Boockvar's operation had been officially shut down for about twelve hours, although there were conflicting reports about whether revote preparations had actually stopped during the appeal.
Boockvar announced that, despite the brief interruption, the state was still on-schedule, and would still be ready for a revote on November 28th if the courts ordered one.
Meanwhile, the Pennsylvania Supreme Court agreed to hear Biden v. Pennsylvania. Briefs were demanded immediately; oral arguments were scheduled for Sunday, November 22nd.
The New York Times editorial that morning: "In the final analysis, the legitimacy of our election is not dependent upon blind obeisance to election statutes written long ago by people who could never have foreseen the present crisis. The legitimacy of our election depends on whether all Americans can say, confidently, that the results reflected the democratic will of the People. We cannot say that of the election held November 3rd, and evidence is mounting that we never will. There is only one possible remedy: the Pennsylvania Supreme Court must grant Vice President Biden's request for a new Pennslyvania election."
The Wall Street Journal editorial that morning: "Democrats have never been modest in their ambitions to remove President Trump from office—by hook or by crook. Even before he took office, they conspired to subvert the electoral college. They expended two years fantasizing about Russian collusion. Then they impeached the President for foreign policy conduct that nobody considered impeachable when President Obama illegally paid off Iran for political gain. They even used a pandemic as an excuse to wreck the economy in an election year. So it is not surprising to see Democrats ask the judiciary to void the will of the people, violate state law, and force a rushed second election down Pennsylvanians' throats, all because of a new round of Russian phantasmagoria. The Democrats' hatred of President Trump is so consuming that they have made the sanctity of American democracy itself a second-rate concern."
Headlines on Huffington Post and Drudge Report were far less polite. Comment sections across the Internet became totally uninhabitable. The moderators of the subreddit /r/politics ruled that it was "trolling" to claim that Russians did not interfere in the election and began banning users who opposed a revote.
Honestly, it all felt a lot like Florida 2000.
And yet it also felt like more. Maybe it was the stakes, which seemed so much higher than they had a generation before. Maybe it was social media polarizing everybody in real time. But you could almost taste it on the air, something I hadn't felt since 9/11: a sense that we were at a turning point in history. There was horror and fury, yes, hatred, too and plenty of it... but also excitement, even anticipation—a sense that infinite possibilities were suddenly within reach to those with the foresight to grasp them. This was somehow bigger than the 2020 presidential election. It had become a contest for America itself.
And we were right. But we were too blind to remember that most turning points in history are catastrophes.
The judiciary knew it had to keep its head on straight. On Sunday, November 22nd, Pennsylvania's Supreme Court held oral arguments in Biden v. Pennsylvania. (Trump v. Boockvar was being kept procedurally on ice.) All seven judges asked sober, legal questions that delved deep into Pennsylvania and federal elections statutes, the evidence presented by recent newspaper reports, the validity of that evidence in a court of law, and the meaning of the Constitution's election protections.
But one could not help but notice that the sober, legal questions were sharply divided: the five Democrats asked sober, legal questions that tended to eviscerate the State's defense. The two Republicans asked sober, legal questions that tended to gut Biden's case.
So nobody was surprised when, on Tuesday, November 24th, the Pennsylvania Supreme Court ruled in favor of Biden. The Court concluded that there was clear and convincing evidence that unknown foreign agents had interfered in the Pennsylvania presidential election, quite possibly changing the results of the election in the process, which directly violated the state and federal constitutional rights of all Pennsylvanians to have their votes counted.
The Court further ruled that counting all provisional ballots, as Biden's campaign had asked, would be better than nothing, but still would not be enough to vindicate the rights of Pennsylvanians. This left only one remedy available. Citing a long, bipartisan, nationwide tradition of revotes in cases of fraud, even in federal elections, the Court cleared aside all statutory scheduling obstacles to a revote and ordered Sec. Boockvar to hold a revote on November 28th, just what she had been preparing for.
The Court's argument: since the constitutional rights of Pennsylvanians to participate in the presidential election had been violated by the original election, and since the only way to vindicate their constitutional rights would be to hold a new election in time for the electoral college vote, any statutes that made such an election impossible were unconstitutional as applied to this situation and the State was not only permitted but required to ignore them.
The vote was 5-2 on party lines, of course.
Governor Wolf and Attorney General Shapiro accepted this judgment and declined to appeal—an increasingly common tactic by state and federal governments that want the courts to void laws they don't like. President Trump was not a party to the case at all, so he couldn't appeal it.
However, the Pennsylvania state legislature, controlled by Republicans and in session since Monday the 16th, intervened. They appealed the case to the U.S. Supreme Court.
Biden's lawyers insisted this was irregular and unlawful; the Pennsylvania legislature had no authority (or, in legal terms, "standing") to get involved in a case between a presidential candidate and the governor. The U.S. Supreme Court apparently disagreed. Or perhaps, given the stakes, the justices just didn't care: every justice has been known to manipulate "standing" doctrine for political reasons—both in order to get cases into the courtroom and to keep other cases out. Chief Justice Roberts has been particularly aggressive about curating the Court's docket in order to protect what he views as the legitimacy of the American system of government. Roberts may have believed the need to conclude this case quickly outweighed any concerns about which particular legal motions had been filed by who. Or perhaps Roberts didn't want to grant the appeal, but was overruled. Either way, SCOTUS took the case.
The Trump campaign and its allies in the Pennsylvania Legislature sought an order by the U.S. Supreme Court to immediately block Boockvar's preparations for the revote. Just as they had argued days earlier, and just as Gov. George W. Bush had argued in 2000, Trump's lawyers told the U.S. Supreme Court that the revote was being held on specious grounds that cast grave doubt (without justification) not only on the legitimacy of President-Elect Trump, but on the legitimacy of Pennsylvanian and American democracy themselves. However, unlike in 2000 (when the Supremes granted a similar request 5-4), the Court refused to stop the revote preparations through a temporary injunction. The decision on the revote would not be made until after the case was heard. The Court issued a per curiam opinion with no official dissents, but there were rumors that Justices Roberts and Gorsuch had insisted on holding a hearing before making any irrevocable decisions.
Briefs were due November 25th, oral arguments to be held the 26th, and a ruling presumably handed down the 27th—with not even a full day to spare before the Pennsylvania revote was scheduled to begin.
On Thursday, November 26th, Pennsylvania completed its original recount of the November 3rd election and began sending final certified county-level results to Secretary Boockvar. Her office called no attention to this, because the state Supreme Court had voided the November 3rd election. Besides, they were now just two days from a presumed revote. But Trump supporters in the press picked up on the recount results, and trumpeted from the rooftops that Pennsylvania had held a vote, had a full and fair recount, and now had certified results: Donald J. Trump had won the state and its electors by a margin of 2,354 votes.
Far more attention, however, was focused on the U.S. Supreme Court, where star lawyers Paul Clement (for Trump) and Donald Verilli (for Biden) were facing off in the oral argument of the century.
You pretty much know how this argument goes, by this point. Verilli claimed that the election had been irrevocably tainted by Russian interference; Clement argued that the interference hadn't been proved, wouldn't taint the election if it had, and, even if the election were tainted, there were other remedies available.
Outside the Supreme Court, the largest crowd in the history of Supreme Court cases gathered to protest. Because the Supreme Court is in Washington D.C., which voted 88% Biden vs. 6% Trump, and there had been little time to organize out-of-state protesters, Trump supporters at the gates were vastly outnumbered, but Capitol Police granted them a prime place for their protest. Mainstream media later reported that, despite the cordons, there had been "scuffles between the opposing camps," especially those coming and going to the protest. Right-wing media reported that four Trump supporters ended up in the hospital. Left-wing media reported that the Trump supporters in the hospital were greatly exaggerating the extent of their injuries. It was a pattern we'd seen before (for instance, the 2018 attacks by Portland's unusually violent antifa outfit, or the 2017 murder of Heather Heyer in Charlottesville), but never at a protest in the nation's capitol with so many policemen on guard.
Reports of vandalism were bubbling away nationally. There's some reports of vandalism practically every day in politics, if you know where to look, and it's easy to exaggerate their importance. Yet I couldn't help feeling that the vandalism reports were well above the norm. I tried to chalk it up to media hysteria giving vandalism more attention than usual, but they were getting harder to dismiss. Vandalism focused mainly on Trump supporters in cities and Biden supporters in rural areas, but affected others in-between. Stacey Abrams, a black Georgia politician involved in Democratic "voter protection" efforts, awoke to a burning cross on her lawn in DeKalb County.
On Friday, November 27th, at 9:00 AM, the Supreme Court issued its ruling.
Trump won the case. The decision was 5-4, with Roberts, Gorsuch, Kavanaugh, Alito, and Thomas outvoting Breyer, Ginsburg, Kagan, and Sotomayor.
Party line. Again.
I'll spare you the quotations this time. If you've read enough Alito and Ginsburg, you already know what the majority and dissent said. The U.S. Supreme Court ruled that Pennsylvania could not have its revote and could not count additional provisional ballots. It then (following normal Supreme Court procedures), remanded the case back to the Supreme Court of Pennsylvania with instructions to conduct "further proceedings not inconsistent with this opinion."
The Supreme Court ruling in Biden v. Pennsylvania was not a great document for any of the justices. They had rushed it out in barely a day. It clearly would have benefited from the months of revisions to which Supreme Court decisions are normally subject. At times, both the majority and the single dissent were muddled, both in language and in logic. The line between binding precendent and obiter dicta was much blurrier than usual.
Despite the ruling, as many reporters based in Pennsylvania noticed, preparations for the revote continued. When interviewed, state and county workers said that they had been ordered that morning to continue to prepare for the revote, no matter what, until the Governor personally issued an order to stop. The order had not yet been given, so they were still prepping.
Where was Gov. Wolf, anyway?
At 9:30, Wolf issued a statement saying he would issue a statement later that afternoon, and that all state employees should carry on with their work until then.
Rumors claimed that Gov. Wolf was on the phone with Justice Max Baer, the senior Democrat on the Pennsylvania Supreme Court. These rumors were never, to this day, substantiated by any credible source. However, they rocketed around social media, rife with specualation about how Wolf and Baer were conspiring to throw Pennsylvania to Biden.
As with so much of this history, it ultimately does not matter whether the rumors were true or false. The effect was the same: today, two-thirds of Reds polled believe the rumors were true, while four-fifths of Blues believe they were false (more or less). If the rumors had later been proved true, two-thirds of Reds would believe them and four-fifths of Blues would not (more or less). If the rumors had later been proved false, the same numbers would have held (more or less). You didn't even live through it, but you know I'm right: by and large, people believed whatever rumors confirmed that the other side was evil and ignored rumors that said anything negative about their side. Once their minds were set, further evidence had no meaningful impact.
In Sullivan County, at 9:50, Sheriff Bobby Montgomery arrested two poll workers. He had instructed them to stop setting up the revote, in the name of the U.S. Supreme Court. The poll workers declined, in the name of the governor. Sheriff Montgomery stated that the U.S. Supreme Court had ordered them to stop and that the U.S. Supreme Court outranked the governor. The poll workers disagreed. So he placed both under arrest. (One was a white woman. The other was a black woman.) This gave Twitter something to argue about for the rest of the afternoon while waiting on Gov. Wolf's statement. In protest, Black Lives Matter and the ACLU jointly announced a march through Laporte, PA (pop. 316), where the poll workers were being held, scheduled for the following day—the day of the would-have-been revote.
At 3:30 PM, Gov. Wolf appeared at his podium. He began by describing the "politicization" of the Supreme Court, making specific references to Bush v. Gore, Citizens United, Shelby County, Christine Blasey Ford's allegations against Justice Kavanaugh, and the so-called "theft" that delivered Antonin Scalia's seat to Neil Gorsuch instead of Merrick Garland. Then Gov. Wolf said that, by denying the people of Pennsylvania a "clean, true vote," the U.S. Supreme Court had acted in error, "both legally and morally."
However, Gov. Wolf conceded, the judicial branch had final authority over this matter. "Remaining hopeful that our democracy will snatch justice from the mouth of voter suppression," Gov. Wolf would await the final disposition of the case by the Pennsylvania Supreme Court, which he expected at any hour. Until then, he ordered that poll workers continue to prepare for a revote, even though "it is the apparent interpretation of five unelected men that our democracy should be cancelled." Gov. Wolf closed by reaffirming his commitment to accepting the courts' final judgment, whenever it should arrive.
At 2:30 PM,President Trump's lawyers revived their claim in Trump v. Boockvar that the Pennsylvania Supreme Court should immediately block all further preparations for the revote. However, the Pennsylvania Supreme Court did not issue a reply to the Trump campaign by 5:30 PM, so Trump appealed directly to the U.S. Supreme Court for an emergency order terminating the revote preparations. This was extremely unusual, but permissible, and perhaps understandable, given the nature of the emergency. The appeal was sent directly to Justice Samuel Alito, the Justice assigned to deal with emergency orders in Pennsylvania's Third Circuit. Strangely, though, the reply came from Chief Justice John Roberts, at 10:45 PM. He denied the campaign's request to end the revote preparations.
An in-chambers opinion signed by Roberts alone explained that it was inappropriate to bypass the Pennsylvania Supreme Court on only a few hours' notice, and stated that it was "unlikely" Trump would prevail on his claim that Pennsylvania "merely preparing for every possibility, however remote, constitutes an impermissible interpretation of the law." Roberts noted Gov. Wolf's vow to abide by the final judgment of the judicial branch and concluded, "while this Court is disappointed that Gov. Wolf characterizes us as a pack of immoral jackals, we are bound to follow the law, both when it opposes Gov. Wolf's position and when it supports it. The law supports him here. With Gov. Wolf, we expect the prompt and final disposition of this case by the Pennsylvania Supreme Court, in accordance with our decision of this morning, before any putative ballots are cast tomorrow morning. The application for an emergency injunction is denied."
On Saturday, November 28th, the day of the big would-be revote finally arrived. The Pennsylvania Supreme Court, which had had Trump v. Boockvar remanded to them with specific orders from the U.S. Supreme Court, spent all day and all night Friday hammering out their opinion. They finally released it at 5:00 AM.
The risk of immediate constitutional crisis was averted: the Pennsylvania Supremes begrudgingly accepted the U.S. Supreme Court's ruling that a full revote was unconstitutional. They ordered Gov. Wolf to put a stop to revote preparations. There would be no possibly-illegal election in Pennsylvania today.
However, by a 7-2 party line vote, the Pennsylvania Supreme Court also ruled that the provisional ballots must be counted.
They made this ruling because, they reasoned, the decision to count (or not count) the provisional ballots was a question of state law, not federal law. The U.S. Supreme Court has no authority to review state-law findings, generally speaking. The U.S. Supreme Court is the final arbiter of federal law, but state courts are normally the final arbiters of their own laws. Moreover, unlike most elections to federal office, the presidential election is not, technically, an election to federal office. (It's an election of electors, which the federal Constitution defines as a state office, appointment to which is governed by state law.) Therefore, while "gratefully acknowledging" the U.S. Supreme Court's clarification that counting the provisional ballots was not required under the federal Constitution, the Pennsylvania Supreme Court ruled that counting the provisional ballots was required under the Pennslyvania constitution. Therefore, Justice Baier wrote in his majority opinion, the provisional ballots must all be counted, immediately.
It would be fair to call Justice Baier's interpretation of the U.S. Supreme Court majority opinion "tendentious." However, in the U.S. Supreme Court's lead dissent, Justice Ginsburg had argued passionately that the U.S. Supreme Court majority ruling was itself tendentious. Most Democrats figured that, if the U.S. Supreme Court was going to play hardball, their side had better play hardball, too. (Of course, both the U.S. and Pennsylvania Supreme Courts would deny they were playing any kind of political games with this. Both insisted they were just applying the law. You go read their decisions, then decide whether you believe them.)
At 6:30 AM sharp, Gov. Wolf appeared again at his podium. Thanking the Pennsylvania Supreme Court for their "final decision," Wolf noted that, since the case had been decided on state-law grounds, there was no further possibility of appeal, even to the U.S. Supreme Court. Under ordinary circumstances, Wolf said, he would of course avoid stepping into a fight between two honored parts of the judicial branch. However, in conscience and in law, Wolf stated he had "no choice" but to accept the order of the Pennsylvania Supreme Court—and no time to wait for further deliberations, lest Pennsylvania lose its electoral college votes. He ordered the revote cancelled, but instructed county officials and workers to immediately begin counting provisional ballots as quickly as possible.
It was at this moment that we peeled definitively away from Florida 2000. The decision in Bush v. Gore was a confusing, messy thing, which many people considered fundamentally illegitimate... but nobody dreamed of defying it. In my view (and the view of millions of Republican voters), that's what the Pennsylvania Supreme Court and Gov. Wolf did here. Were they right to do so? Perhaps so. I, for one, am a longtime and passionate opponent of the absurd, ahistorical, and undemocratic view that the U.S. Supreme Court Always Gets The Last Word. I found Wolf and the PA Supreme Court's arguments plausible. But, personally, I thought the U.S. Supreme Court had been quite clear about provisional ballots, and that Pennsylvania, right or wrong, was pretty blatantly manipulating their ruling to try to get the outcome they wanted.
Of course, Biden, Harris, and their lawyers insisted that Pennsylvania wasn't violating the U.S. Supreme Court order at all, merely clarifying it and separating binding from non-binding portions. That's their prerogative, I guess. The decision in Biden v. Pennsylvania was messy enough that I can at least see a few of their points.
Nothing else really happened today, except the Black Lives Matter protest in Laporte turned into a riot. Downtown Laporte (roughly Main Street between Maple and King) was set on fire, leaving two dead (one attacker, one resident). A city of 300 suddenly had 3,000 marchers and dozens to hundreds (it's never been clear) of agitators (some say white supremacists, some say antifa, you know how it is). The local police force was (obviously) overwhelmed, even with reinforcements from across the county. The mob broke the poll workers out of jail at the county courthouse.
A couple national outlets had cameras on the ground to document the peaceful protest, but, as soon as it became violent, media turned off the cameras and stopped touching the story... other than to occasionally bleat that the protest had been "mostly peaceful" and that right-wingers were "weaponizing" the death toll. This would once have shocked me, but you remember media coverage of the George Floyd protests as well as I do.
There were 16 days left until the electoral college voted—and only 10 days until the important statutory deadline, the "safe harbor" provision, for certifying a state's electoral votes.
On Sunday, November 29th, the second recount, now including all 31,983 provisional ballots, began in counties across the state... but not in all of them.
A number of Trump counties claimed that, based on the order of the U.S. Supreme Court, it would be unlawful for them to participate in the recount. In Sullivan County, most provisional ballots had been destroyed by the rioting, so recounting them was literally impossible. In Mercer County, a "squad" of armed militia men arrived at the location where the ballots were being counted... and stole them, making them uncountable as well. The identities of this group were never confirmed, although the Wolf Creek Rangers (a local militia unit) was under investigation for a few months, until events made further investigation impossible.
Although political campaigns have a right to send observers to watch any recount in the state of Pennsylvania (something both campaigns always do for any recount anywhere), the Trump Campaign announced that it would no longer "legitimize these sleazy, underhanded tactics," and would not send observers to watch the provisional ballot recount. (They would later claim fraud.) The Biden Campaign did send observers as usual.
And, of course, the Trump Campaign once again renewed its suit to stop the provisional ballot recount.
I think we've reached the point in this narrative where we can skip a lot of the picayune legal details. This is what you need to know: over the next fortnight, the court case over the recount countined to bounce around between Commonwealth Court, the Pennsylvania Supreme Court, the U.S. Supreme Court, and even popped into the 2nd Circuit federal courts for a bit. John Roberts, extremely reluctant to bring this case back to his courtroom (because he feared it would harm his court's treasured "legitimacy") tried to split the baby not once, but twice. But the court's fed-up conservatives bypassed him the first time by granting cert despite his threat to vote with the liberal bloc, and the second time simply didn't stick. The lower courts weren't interested in fairly applying Roberts' baby-splitting, single-vote controlling opinions, and the politicians on both sides even less so.
I think we can also skip the tweets. There were a lot of them, and they were lit, but boil it down and it was just two very loud factions screaming that the other was trying to steal the election. President Trump's tweets were loudest and dumbest. Mr. Biden's were rare and utterly inane. Newspapers were, frankly, worse than Twitter—the Great Spring Awokening of 2020 had made it nearly impossible for most papers to inform the public. (Whether this was journalism's fault or the public's was a matter of great dispute.) The media weren't even seriously attempting to accurately report the Trump Campaign's legal arguments; they tended to attach adjectives like "baseless" and "unfounded" to the Trump Campaign's factual claims, but not to the Biden Campaign's. The media were thus hardly capable of editorializing a nuanced position like, "We support candidate X, but, on the legal question before us, we think candidate Y makes the better argument."
What's interesting to our inquiry at this point is the quiet escalation of violence. Frankly, at the time, I missed this. There was too much noise, and I was too wrapped up in the legal issues. But the law only restrains a people insofar as they believe the law is legitimate, and, in the hands of obviously partisan courts and openly partisan election officials, in the crucible of a contested presidential election for all the marbles, the legitimacy of American law was beginning to unravel.
On Monday, November 30th, units of the Pennslyvania State Militia, one of the larger right-wing militias in Pennsylvania, began systematically entering county facilities where provisional ballot counts were being held. They confiscated and removed several hundred "illegal" ballots. Videos of their destruction were, in some cases, uploaded to YouTube. The militia's organizer, Michael Grove, denied that these units were acting on orders from his organization, although he did applaud their "heroic efforts to defend the integrity of the American presidential election."
On Tuesday, December 1st, all county offices in the state were protected by the Pennsylvania National Guard. There was no militia interference that day, so participating counties chugged through their new recounts. Although there were only 31,000 provisional ballots statewide, Pennsylvania recount law required all counties to fully recount the vote after a discrepancy like "the State Supreme Court orders you to count even the dubious provisional ballots this time."
On Wednesday, December 2nd, state police sought out the ballots stolen from various counties. The FBI was not participating in the investigation due to the Trump Administration's opinion that the recount was unlawful—thus the militias had violated no law, or at least no law worth enforcing. Hobbled by a lack of resources and specific training dealing with right-wing militias, the police fell short.
However, left-wing militia did not. Although the national organization of Redneck Revolt (the Marxist militia) had broken down since the 2018 elections, RR's Pennsylvania chapter had been very active and was galvanized by the events in their state—and they were determined to find the missing ballots. So it was a posse of heavily armed left-wingers that knocked on the doors of several known militiamen in Dauphin County and, at the point of a gun, demanded permission to search their homes.
Word quickly got out among the right-wing militiamen and, while the left-wingers were still searching the second house, an armed ring-wing response arrived. A stand-off began. Violence might still have been averted if not for the fact that, while the confrontation was still going on, the left-wingers found a number of stolen provisional ballots on the premises. When they attempted to remove the ballots, someone—it was never clear who—fired a weapon. In the ensuing gun battle, two participants died and six were wounded.
On the one hand, this is not substantially bloodier than the gang battles that plague the streets of many American cities on a weekly basis, and I dismissed it for that reason. In retrospect, I should have considered how strange it was for men in organized citizens in America to exchange two-way gunfire over a political dispute. In America, gangs killed each other over drugs or money or gang honor—not ballot security. That had now changed.
The following day, Thursday, December 3rd, left-leaning protesters took to the streets of Harrisburg to express outrage over the ballot theft and the killing of the (left-wing) militiamen. While the protests were reported as "mostly peaceful," the houses of both right-wing militiamen were destroyed by arson over the course of the day, as was a sympathetic gun store and the house of a suspected right-wing militiaman. (Days later, it would turn out that the suspected militiaman merely shared a name with an actual militiaman, had never owned a gun, and voted for Biden. Unfortunately, this did not bring back his house, but he did okay on GoFundMe.)
Do you remember Shelby Pierson? The federal election security chief, last seen making the decision not to share her team's findings until their investigation was complete? Yeah, by Friday, December 5th, I'd kind of forgotten her, too. Only three weeks had passed since her and DNI John Ratcliffe had addressed the nation, but she had been so quiet, and so much had happened, that it felt like fifty years had gone by. Nevertheless, her team did carry out a thorough, professional investigation of foreign tampering in the Pennsylvania (and other) elections. And, it must be said, to finish an investigation of this scope in just three weeks was lightning-quick by Official Investigation standards. Today Pierson announced her team's findings:
With high confidence, Pierson asserted, there had been wide-scale cyberattacks on U.S. election systems on and before election day, including in Pennsylvania. With high confidence, those attacks originated with the Russian government, not with other private operators.
However, her team could find no irrefutable forensic evidence that foreign powers had directly altered vote totals or (more importantly) voter records. On the other hand, given the limited cyber-audit controls in place in nearly all Pennsylvania counties, her team would not expect to find forensic evidence. And they saw plenty of suggestive evidence.
A statistical analysis of "turnaway" and provisional ballots cast did suggest the probability that there was an unaccountably high number of both in the 2020 election in Pennsylvania (and in several other states, including Michigan). This provided indirect evidence of Russian interference... but, on this point, her team asserted only medium confidence.
Congress and the media immediately began to pressure Pierson for a direct answer to the question, "Did Russia hack our election?" She and Ratcliffe eventually caved in and answered: "It is not at all clear what happened on Election Night, and it may never be. It is impossible to draw any firm conclusions about the nature of the network invasion at this stage. However, at this point in our investigation, we consider direct Russian alterations to some voter rolls to be more likely than not."
Pierson's analysis was correct. I've read it. Indeed, it was always likely that the investigation would be inconclusive. There was absolutely no way to know exactly what had happened on election night.
But, politically, it was the worst possible answer. You remember Russiagate, it's still recent history for you! So you can almost write the partisan storylines yourself. Breitbart blared: "'NO FORENSIC EVIDENCE' FOR DEMOCRATS' RUSSIA CONSPIRACY THEORY," which was largely true. The Huffington Post blared, "'HIGH CONFIDENCE' RUSSIA ATTACKED ELECTION SYSTEMS," which was also largely true. The mainstream media all went with variations on HuffPo for their headlines and variations on Breitbart for their subheads, because that was "responsible journalism" in the Year of Our Lord Twenty Twenty. Everyone in the country knew The Facts about the Pierson Election Report from their favorite news sources, and they all knew that The Facts favored their candidate... whichever candidate that happened to be.
The only place that actually headlined Pierson's findings as "INCONCLUSIVE" was a tiny conservative publication called The Dispatch, which had been unable to endorse either candidate in the election and represented a sliver of a fraction of the electorate.
On Saturday, December 6th, Michael Grove, nominal head of the right-wing Pennsylvania State Militia, was assassinated. Grove was killed by a sniper's bullet while walking to his car. His family was unharmed. Again, who had time for this? I didn't. There were lawsuits going on! A thousand-page election security report to read! Audit controls to learn! What's one dead guy on the fringe when we're in the middle of America's biggest electoral paroxysm since 1877?
And yet something had happened over the past few weeks so quietly nobody really picked up on it: there had been a series of politically motivated fist-fights in bars and taverns around the country. Somehow, almost by osmosis, I now knew the political alignments of every bar owner within five miles of my suburban Minnesota house—the red bars and the blue bars. I also knew, without ever consciously thinking about it, that, for my own safety, I needed to stay out of the blue bars.
But I hadn't gone to bars in nine months anyway, thanks to covid, and who'd have time to grab a pint with friends anyway, in the midst of America's election drama?
Even as the court battles over the legality of the provisional ballot recount continued to rage, the counties participating in the recounts were beginning to finish up. On Sunday, December 7th, as court-ordered recount deadlines arrived, Secretary Boockvar received the new certified vote totals from all participating counties. Under P.S. §3159, Boockvar is instructed by law to "tabulate, compute, and canvass the votes cast... upon receiving the certified returns of any primary or election from the various county boards." Her staff took an unofficial count, and discovered that, in this final recount, Biden had defeated Trump. The provisional ballots had carried him over the top after all.
However, Boockvar had a problem here: there were still quite a few counties for which she had no vote totals, and no expectation of ever receiving vote totals, because they were boycotting this "illegal" recount. Should she certify the election now or continue giving the non-participating counties a chance to turn in their results? Many of those counties were Trump counties, and their refusal to participate was depriving Trump of thousands of votes.
Complicating matters, the state was only a few hours from a federal deadline to certify their electors. The federal "safe harbor" law (3 USC §5) provides that, if a state settled its "final determination of any controversy or contest concerning the appointment of all or any of the electors" at least six days before the electoral college voted, that determination "shall be conclusive" and would have to be counted. Every state makes use of the "safe harbor" every election year in order to prevent Congressional disputes over their electoral votes. The Great State of Pennsylvania had been willing to abandon this "safe harbor" in order to get a full revote. But, now that there was no full revote, Pennsylvania wished to avail itself of this law -- which meant the count had to be settled within twenty-four hours. Gov. Wolf and Attorney General Shapiro met with Sec. Boockvar to determine how to proceed.
After their meeting, Gov. Wolf announced a final deadline: all counties had until noon on Monday to report their certified, final county vote totals. Wolf added that, according to the count currently in his possession, Joe Biden was winning by just under 7,000 votes. (That's what happens when the Trumpiest parts of the state refuse to count their votes. He didn't say that last part, though.)
Decrying the "Rigged Recount" once again on Twitter, President Trump discouraged any of his supporters from participating in the recount "in any way."
On Monday, December 8th, as the noon deadline came and went, Gov. Wolf and Sec. Boockvar received only two new sets of vote tabulation certificates from "non-participating" Republican counties. The first was from Elk County, which reported results identical to the results it had reported in the prior recount. (This meant that Elk County had simply refused to recount any provisional ballots, and had likely just sent a new copy of its original certification.) The second certificate was from Montour County, pop. 18,000, which reported the following results:
Biden (D): 3
Trump (R): 797,405
Jorgenson (L): 4
Following another meeting with Wolf and Shapiro, Boockvar accepted the Elk County return and rejected the Montour County return as fraudulent.
She then tabulated the votes and presented the results to Gov. Wolf. According to Pennslyvania's second recount, with all provisional ballots counted, but several counties boycotting, Joe Biden was winner of the state's presidential election, by a margin of 6,411 votes.
Wolf then asked Boockvar for an alternative tabulation: what if, instead of simply not counting the votes of the boycotting counties, the state counted their previously-certified vote totals from the previous recount?
Boockvar already had that alternative tabulation prepared, and informed Gov. Wolf that, even if the boycotting counties' votes were counted, Biden still won by a margin of 213 votes. Counting all provisional ballots had put him over the top, regardless of what the Republican boycott counties did.
Gov. Wolf formally accepted Sec. Boockvar's certified results and, as required under 25 P.S. § 3166, he signed an order issuing Certificates of Election to the victorious presidential electors: the Democratic slate of electors pledged to Joe Biden. The "final determination" of his office, under Pennsylvania law, was that Joe Biden had won Pennsylvania and all its electoral votes—and he had made this determination prior to the expiration of the federal safe harbor provision.
On Tuesday, December 9th, the Republican-led legislature passed a joint resolution asserting that Gov. Wolf was a "liar" and a "cheat," in those words. The determination of the legislature was that Donald Trump had won Pennsylvania and that Biden and Wolf were stealing the election.
Then they got down to business. And that business involved a little history.
Article II of the Constitution states, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Each state legislature has plenary authority to appoint electors. The total authority of legislatures over a state's electors had been affirmed many times, most prominently in McPherson v. Blacker, an 1892 Supreme Court decision that affirmed Michigan's right to apportion electoral votes by congressional district (which the Democrats wanted to do in order to boost Grover Cleveland's re-election chances, true story, kinda worked, too). The principle was also affirmed more recently in Chiafalo v. Washington, a 2020 decision that allowed state legislatures to pass laws against so-called "faithless electors."
The state legislature can hold a popular election to appoint electors, effectively transferring the legislature's Constitutional authority over electors to the voters. Indeed, since 1876, that's exactly what every state has done. But there is no actual constitutional requirement to hold popular presidential elections! Indeed, as we discussed at the beginning, the Founding Fathers specifically intended to avoid the calamity of popular presidential elections, which is why they gave us the electoral college in the first place. Thus, any state legislature can pass laws abolishing the popular presidential election, then choose the state's presidential electors directly. The legislature could also appoint a commission to choose the electors, automatically appoint party officials as electors ex officio, choose the electors by picking random names out of a phone book, whatever. The legislature's authority is total.
In one of history's strange little footnotes, direct legislative appointment of electors actually happened in Florida during the disputed 2000 election. Although practically no one remembers it now, there was a very confusing week early in December 2000 when nobody knew whether Florida was going to be able to resolve its massive voting dispute in time for the electoral college vote (which, that year, was on December 18th). The state legislature, with both houses under Republican control, called itself into special session. (The governor, Jeb Bush, was also a Republican—not to mention the brother of the Republican candidate, George W. Bush.)
On December 12th, 2000, the Florida Legislature passed a concurrent resolution, HCR 1-A, which asserted that "the election for electors for President and Vice President of the United States of America held on November 7, 2000, ultimately failed to make a choice of such electors," and, therefore, "that the Florida Legislature hereby appoints as the 25 electors for President and Vice President of the United States of America... the following named persons..." The resolution then goes on to name each of the twenty-five Republican electors. The debate over the wisdom and legality of this resolution was long and serious... but it passed! With this resolution, the Florida legislature nullified the 2000 presidential election in Florida and substituted its own slate of electors, exercising its plenary power under Article II.
A few hours later, the Supreme Court handed down Bush v. Gore, which declared, in essence, that Bush's electors had won the original 2000 presidential election in Florida anyway. This made the Florida legislature's resolution a moot point, so nobody bothered to fight it in court—either way, Bush's electors had won.
There were a number of serious legal arguments for why the Florida legislature's action had been illegal. For example, while a legislature has the innate power to appoint electors, it is not at all clear that the legislature still has the power to appoint electors after it has passed laws transferring that power to a popular vote. Wouldn't the legislature need to repeal those election laws before trying to appoint its own electors? Wouldn't the governor get a veto? It is even less clear that the state legislature can nullify an election after it has happened, even if the results are disputed.
On the other hand, the powers granted to state legislatures in Article II are truly sweeping, and Article II doesn't say anything about governors getting a say. Governors don't have a say in ratifying constitutional amendments, and the language in Article V is very similar to the language in Article II. None of these competing arguments were definitively settled during Election 2000, because there was no point in litigating them.
But, legally speaking, it appears to be the case that the 6 million votes cast in Florida for Bush, Gore, or Nader did not determine Florida's electors in the 2000 election. Rather, in the 2000 presidential election, the Florida legislature chose its electors directly.
The Pensylvania legislature decided to follow suit. On December 9th, they passed a resolution declaring "the election for electors for President and Vice President of the United States of America held on November 3, 2020, ultimately failed to make a choice of such electors," and so they took back control of the process, stated that the Constitution and 3 USC §2 gave them permission to do this, and finally appointed the entire Republican slate of electors—all pledged to Donald Trump—to cast Pennsylvania's electoral votes. They ordered Sec. Boockvar to transmit Certificates of Election to the electors. (Fair do's to Ed Kilgore, a phrase I have never said before and hopefully never will again: he foresaw this.)
Oh, and, in Pittsburgh, three Black Lives Matter activists turned up gruesomely dead. All three had been involved in planning the protests in LaPorte and Harrisburg. Breitbart blamed "gang violence." The rest of us knew better. Andrew Sullivan wrote an article entitled "Bloody Pennsylvania?" including the question mark, which ran in The Atlantic.
On Thursday, December 11th, the Supreme Court of the United States caught up to Monday. The Court ruled—arguably for the second time—that the recount of all provisional ballots violated the 14th Amendment rights of legitimate Pennsylvania voters. The recount had to be disregarded, and the certificates of election issued by Gov. Wolf revoked. They further ruled that Pennsylvania had not met (and could no longer meet) the requirements of the "safe harbor" provision in 3 USC §5.
But the Supreme Court, reluctant to extinguish further legal processes or to reach beyond the actual case it was dealing with, stopped short of ordering Gov. Wolf to issue certificates of election to the Republican electors, or to recognize the certificates issued by the legislature. It simply ruled that the recount was invalid.
The vote count was, again, 5-4. Technically, Roberts issued the decision per curiam, to try to show unity, just as Chief Justice Rhenquist had done in Bush v. Gore... but, just as in Bush v. Gore, the court's left-wingers insisted on filing a dissent, which they did with gusto. The only thing that had really changed since the Court's original decision on November 27th was the Ratcliffe-Pierson Preliminary Investigative Report on Russian interference in the election, which both sides of the Supreme Court heavily cited in support of their position that the recount was or was not justified.
After a series of 5-4 decisions about this election during just the past few days, with Roberts acting as swing justice (but usually voting with the conservatives), the Court's legitimacy was in tatters. The man-in-the-street Biden supporter did not recognize or reward Chief Justice Roberts for making a limited ruling in favor of Trump; he knew only that Roberts and the five conservatives had ruled for Trump, probably because of all their corporate donor money. (Supreme Court justices do not receive any corporate donor money, but you try telling the man in the street that!) The woman-in-the-street Trump voter did not recognize or reward Chief Justice Roberts for delivering a win; she had considered Roberts a political weather-vane since "he saved Obamacare" and knew only that Roberts had refused to go along with the True Conservatives (TM) to deliver the full win they deserved.
Prior to November 30th, only about 3% of Americans polled were even aware that the electoral college "safe harbor" provision existed—fewer than the number of Americans who believe the moon landing was faked. But, after 10 days of exhaustive horse-race news coverage, over 75% of Americans were now aware of the provision, and most had strong opinions on whether Gov. Wolf had met the "safe harbor" rules or not. Everyone's favorite op-ed writers and politicians reinforced their opinions. Subsequent polls showed absolutely no evidence that the Supreme Court's definitive ruling on the matter affected any citizens' opinions in any way.
This was inevitable: for quite a long time now, the Supreme Court's political legitimacy has not been based on its ability to reason correctly about the law, but rather on Chief Justice Roberts' attempts to arbitrarily give both "sides" the occasional "win"... or, failing that, to keep his Court out of politics entirely. That strategy's chickens now came home to roost. The Supreme Court had no choice but to weigh in on these fraught legal issues, it could only give one side a "win," and both sides considered this election to be "for all the marbles," so Roberts was not able to placate the losing side by giving them a win on a different issue. For a Court that had long since abandoned the rule of law as its lodestar, a Court whose center had deliberately politicized its decisions, there was no coming out of this election with its legitimacy intact. It was just a question of which side would hate the Court more. Justice Roberts had turned not just himself, but his entire branch of the federal government, into 2016 James Comey.
Meanwhile, in Harrisburg, Sec. Boockvar rejected the state legislature's request to transmit certificates of election to the Republican electors. Her argument (and that of Attorney General Shapiro) was simple: the legislature's attempt to usurp the election process was illegal. They were allowed to appoint electors directly, but they could not build a statutory election system and then just throw out the results after the fact. The state legislature responded by printing up its own certificates of election and sending them to the Republican electors.
The electoral college would vote on Monday the 14th.
On Friday, December 12th, faced with a direct order of the U.S. Supreme Court, Gov. Wolf asked how to revoke the certificates of election for the Democratic electors he had certified on Monday. Unlike, say, Minnesota (which has §204C.40), Pennsylvania law does not appear to include any explicit provisions for the invalidation of certificates of election after they are issued. This led Gov. Wolf's administration to briefly consider a challenge to the U.S. Supreme Court decision on the basis that they could not comply with it. The electors had been formally appointed to office, and it was too late to do anything about it, and so Pennsylvania no longer had any choice but to cast its electoral votes for Joe Biden. This approach, however, had a lot of legal holes in it, and was squelched within a day. Attorney General Shapiro formally revoked the certificates of election Gov. Wolf had issued to the Biden slate of electors.
Meanwhile, in Harrisburg, the Pennsylvania Supreme Court heard a case brought by the Biden electors against the state legislature. The court invalidated the legislature's appointment of electors, agreeing with Sec. Boockvar's position that the legislature was bound by state election law.
On Sunday, December 13th, Gov. Wolf announced that he was unable to determine the results of the November 2020 Pennsylvania Presidential Election. He said he had attempted, under the laws of Pennsylvania, to cure the defects of the election after it had been, in his words, "hacked by a foreign power," but his attempts had been thwarted at every turn — exclusively by Republicans "who, for all their griping about 'voter fraud,' apparently don't care if an election was stolen outright... as long as the thieves hand the loot to them." He had attempted a "full, fair, and free revote," but the conservative Supreme Court justices—"the same ones who sanction Republican voter suppression on an annual basis"—had blocked him. He had attempted to recount the provisional ballots that the Russians had "likely compromised," but he had again gotten blocked. He now presented his position as untenable: the Pennsylvania Supreme Court had thoroughly and repeatedly invalidated the results of the original November 3rd election, but the U.S. Supreme Court had thoroughly and repeatedly prevented any alternatives.
Gov. Wolf explained that, while it "breaks [his] heart," he was unable to certify any election result as the true and correct Will of the People of Pennsylvania. He could not, in accordance with the law, issue Certificates of Election to the Democratic electors. And he could not, in accordance with the values of democracy, America, and his own conscience, issue Certificates of Election to a slate of Republican electors "who, in all probability, were only 'elected' by Vladimir Putin. He may be the tyrant of Russia, but he is not the tyrant of Pennsylvania."
Therefore, Gov. Wolf would issue no Certificates of Election for the 2020 Presidential election. In accordance with state law, he could appoint no electors. Pennsylvania would not be able to participate in the 2020 electoral college vote. Its 20 electoral votes would go to no one. The nation would have to choose a president without the Keystone State's help.
(This meant that Joe Biden would win the electoral college, 261-257, a fact that was lost on no one but which Gov. Wolf did not mention in his address.)
As a little chef's kiss, Wolf formally vetoed the legislature's appointment of the Trump slate of electors, and he accordingly invalidated the certificates of election for all the Trump electors. This was a neat trick, because the legislature's appointment of electors was a concurent resolution, not a bill, and the legislature had therefore not presented it to the governor for signing. Thanks to Article II of the U.S. Constitution, the legislature did not believe the governor got any say in appointments of electors. The legislature considered his veto null and void.
But Gov. Wolf pointed out that the Pennsylvania Constitution, Article III, Section 9, gave him veto authority over all concurrent resolutions, not just ordinary bills. So, did Wolf have authority to veto the legislature and block their electoral slate, or did the U.S. Constitution pre-empt the Pennsylvania Constitution in this case? Nobody could say for sure, and legal experts were divided. It would have to be settled in court... and there was simply no time left.
Meanwhile, in Lansing, Michigan, the Republican-held state legislature intervened. Majority Leader Shirkey (R-Clarklake) and Speaker Chatfield (R-Levering) had held the legislature in session over the weekend, and, in response to the Supreme Court decision on Thursday, they now passed their own Article II resolution reassigning the state's 10 electoral votes to the Republican slate. However, there was no dispute that Biden had won the popular vote in Michigan. Certification had already been issued to Michigan's Democratic electors, and had not been challenged in a timely fashion. Nevertheless, Michigan Republicans asserted their authority under Article II to assign electors however they saw fit.
The Michigan House and Senate concurrent resolution explained that they weren't doing this to protect democracy in Michigan; they were doing it to protect democracy in America. Michigan legislators argued that (to give one example from the debate), “Mass voter fraud and disenfranchisement, facilitated by and for the Democratic Party, threatens to overturn the result of the presidential election in Pennsylvania and throughout the country. In the name of the Republic, we have no choice but to join Michigan's voice to theirs, in solidarity with their millions of voters.” They sprinkled plenty of quotations from Justice Alito's and Justice Gorsuch's Supreme Court opinions of the past several weeks.
A few hours later, Gov. Whitmer follow Gov. Wolf's lead and vetoed the Article II resolution from the Michigan legislature, for good measure.
On Monday, December 14th, the electoral college met in all fifty states to cast votes for President and Vice President of the United States.
Well... the members of the college met in forty-eight states.
In Pennsylvania, Gov. Wolf kept the capitol building closed. However, he could not prevent the Republican state legislature from holding a session in the chamber of the Pennsylvania House of Representatives, where the electoral votes are usually cast. He could also not prevent the House from inviting the electors into the session. And he could not prevent those electors from filling out ballots for Donald Trump and Mike Pence, sealing them according to statute, and mailing them to various entities, again according to statute.
Nor could he prevent the Democratic slate of electors from meeting in Philadelphia City Hall and casting their votes for Joe Biden and Kamala Harris. Meeting in Philadelphia technically violated state law, since Philadelphia is not the seat of government (25 P.S. § 3192), but the Democratic electors had been told by both the Governor and the Legislature that they would not be allowed into the Harrisburg capitol building, and right-wing militias had promised to find them and "prevent them from voting" if they attempted to cast their electoral votes elsewhere on the capitol grounds in Harrisburg. So they decamped to Philly, where Mayor Kenney was happy to welcome them. Eight of the twenty-five Democratic electors refused to attend this meeting, arguing that Gov. Wolf was right and there should be no electoral vote in Pennsylvania this year. But the other Pennsylvania electors considered Gov. Wolf's revocation of their electoral certifications invalid, and saw themselves as duty-bound to vote. So, following the procedure of 25 P.S. § 3193, the electors swiftly replaced their missing members, notified the governor (who did not issue the written notice demanded by the statute), and the Democratic electors cast their votes on schedule.
All Gov. Wolf could do was what he understood to be his responsibility under 3 USC §6: he wrote the Vice President of the United States a letter that said that Pennsylvania had appointed no electors to the electoral college this year, sealed it, and sent it by registered mail.
The electors themselves, of course, were charged with a solemn duty by the Founding Fathers: to cast their votes for the best men (or women) for the jobs of President and Vice President. Under the new Chiafalo Supreme Court decision, handed down in June, Pennsylvania had the right to force the electors to vote a particular way—but Pennsylvania had done no such thing, preserving elector freedom in a small way.
The electors used this freedom to vote straight party-line tickets. 20 Republican electors for Trump, 20 Democrat electors for Biden, not a single attempt to vote for a better candidate, not a single one of them recognized by the state's executive branch as valid.
In Michigan, two competing “colleges” met. The Republican slate met in the Michigan Senate, as required by Michigan statutes (168.47), and voted for Trump. The Democratic slate, barred entry to the Senate floor, voted in Gov. Whitmer's office and voted there for Biden. This dispute also entered the court system, but the Pennsylvania cases had a few days' head start on them. Many analysts believed that Michigan had a slightly stronger case than Pennsylvania, because of the Michigan state law (168.846) that allows the “state legislature in joint convention” to settle many electoral disputes.
Before the close of business on December 14th, both the Republican electors and the Democratic electors of Pennsylvania had sued Gov. Wolf, each demanding that the governor recognize them as the bona fide electors for the state of Pennsylvania. The Michigan Republican slate did the same to Gov. Whitmer.
Without the pressure of the impending electoral vote staring them down, the courts were able to relax a little bit. They stopped the breakneck twenty-four hour cycle of sue-argue-decide-appeal that had prevailed during the end of November and start of December, and started to hold something vaguely resembling properly briefed hearings and opinions. The action moved away from the courts for a short time.
On December 15th, media reported on a story that had blown up on social media overnight. According to recently-updated campaign finance disclosures, Tom Monaghan, the founder of Domino's Pizza, had given a substantial amount of money to the Trump campaign and Trump-related PACs. Under ordinary circumstances, this would brand him a racist in the eyes of many on the Left. It's not like it was a big shock that the founder of Ave Maria University and backer of Sam Brownback's 2008 presidential run was a Trump supporter.
But these were not ordinary times. Monaghan's largest donations had come after the election. Further investigation by Internet Sleuths revealed Monaghan had also maxed out donations to Republican state legislators who had fought Gov. Wolf and the revote, and that he'd given large sums to Republican state judges who had ruled against Gov. Wolf and the Biden campaign immediately after their rulings. In a move of questionable legality, he had even donated to several members of the Republican slate of electors themselves, ostensibly to defray their legal costs and so forth.
In the eyes of roughly 40% of Americans, this was a deliberate post-election attempt to buy the results of a contested election with cold hard cash, corrupting the legislative and judicial systems at their core. This was not mere racism. This was treason.
Domino's Pizza locations in New York City, Portland, and Topeka were looted that night. Two were burned to the ground. One of the fires, on 82nd Ave, destroyed an adjoining Russian grocery store (the mob cheered this as well, considering it a blow against Putin) and a Tires Plus.
Accusations flew that all the Republican electors in Pennsylvania had received Monaghan money, but only a few had reported it. These rumors lasted three days before they were proved true, which did not help at all.
It has always seemed to me that the best explanation for the unreported donations was that the office of presidential elector is normally used by political parties as a sinecure for longtime party volunteers and insiders who—by design—don't actually know how to run for office. Few electors have the slightest idea about campaign finance, and the usually-mechanical nature of their position mostly normally makes it so they don't need to worry about it. But left-wing blogs (and here I do include the post-Bari Weiss New York Times op-ed page) were quick to conclude that the Republican electors who didn't report the "Moscow Monaghan Money" were scheming monsters who held campaign finance law, not to mention democracy itself, in contempt, and that this delegitimized their electoral college votes. (Thank you, Maureen Dowd.)
On December 16th, at least one Domino's in every major U.S. city was physically attacked. Wherever that didn't happen, their order system was overwhelmed with fake orders phoned in by (among others) K-Pop fans.
The chain issued a series of statements throughout the day, as it had the day before, noting that Monaghan owned only a small portion of Domino's and no longer played any role in the company's day-to-day operations. This seemed to have little mollifying effect, since Domino's money still flowed into Monaghan's pockets. Chairman of the Board David Brandon, a Republican, attempted to quell the fury by buying out all of Monaghan's remaining stock, so Monaghan would no longer be any part of the Domino's family. But anti-Domino's protesters saw this as an attempt by Brandon to give Monaghan a giant pile of cash (which, technically, is accurate) so that Monaghan could continue "terrorizing democracy."
When a pizza delivery man in Boulder, CO was called out to a fake delivery, jumped, and beaten by a group of two or three unidentified males, the pizza chain had no choice but to close its doors temporarily, nationwide.
In Minneapolis, a Target was looted, because Twin Cities rioters always loot Target for some reason. (Sad but true.)
On December 17th, Judge Christopher C. Connor of the U.S. District Court for the Middle District of Pennsylvania ruled in one of the several elector lawsuits (this one by the Pennslyvania Republican slate) that the question of which electoral votes to count was non-justiciable. The Constitution and federal law charge Congress with the duty to determine the eligibility of electoral votes, and, Judge Connor reasoned, that meant the judiciary had no power to rule independently on it. He dismissed the lawsuit under Baker v. Carr's "political question" doctrine. The Republicans appealed, and the case began its inevitable climb toward the Supreme Court.
As of December 18th, a Friday, prediction markets implied a 65% probability that Donald Trump would ultimately serve a second term, with only a 35% chance that Biden would take office on Inauguration Day. The elites who both create and consume political betting markets allowed this to fuel their performative alarm.
But, in reality, the elites were reassuring themselves. A second bet, offered only on a minority of political gambling sites (and Metaculus), allowed users to bet on the date by which the election would be resolved. Details varied between sites, but, roughly, users could bet that it would be resolved by December 25th, by January 7th (the day after Congress counts the electoral votes), by January 20th (Inauguration Day), or "after January 20th, 2021." This last option was trading at only 12% probability.
In other words, even in the third week of December, with no clear end in sight, political bettors believed that there was an 88% probability of an on-schedule, peaceful transition of power.
A crowdsourced prediction engine of another kind was far less optimistic: this is the day national media began reporting that, across the nation, gun stores were running out of stock. Sales had been quietly climbing for weeks, and now the U.S. market was literally running out of guns to sell.
On the night of December 19th, a dumb thing happened. Some boogaloos (a far-right movement whose aim was to foment a second civil war, whose uniform consisted of Hawaiian shirts and body armor, I am not making this up) attempted to burn down a Starbucks in Denver, Colorado. They were angry about all the Domino's shops getting destroyed with impunity and decided to strike back against the notoriously left-leaning coffee chain. Comically, they failed—it was a cold, snowy night, and they just couldn't get the flames to catch. Police got wind of the attack, surrounded the area, and moved in. Most of the would-be rioters ended up in cuffs. As the sun rose on December 20th, the Starbucks of Park Hill stood proudly to receive her golden rays.
Unfortunately, that's not quite the story that got shared in the right-wing infosphere—the blogs, news sites, mailing lists, and (especially) Facebook groups where the American Right got much of its news.
The Right back then didn't trust conventional news, which was fairly natural, since conventional news media hated and excluded conservatives far beyond the wildest dreams of disparate impact litigants. So the Right created their own alternative news environment. Unfortunately, right-wing alternative news was not "conventional left-wing news, but with a right-wing spin." It was a crock-pot consisting of one part news reporting, one part conservative analysis, three parts complaining about the left's hypocrisy, and several hundred parts rumor-mongering and conspiracy theorizing. Scott Alexander explained why and how this happened much better than I ever did—and, nowadays, it's all water under the bridge. The point is, the right-wing infosphere was a broken, bizarre ecosystem, where conspiracy theories about faked covid-19 numbers and QAnon thrived regardless of the objective facts. (And the mainstream media, for its part, published actual fake news just often enough that you could never be quite sure whether the right-wing meme du jour was actually legit.)
So when the right-wing infosphere got ahold of this funny story about dumb boogs who can't blow up a coffee shop, there was a mutation. I don't know where it came from. Maybe the original boogaloos deliberately lied about their arrest in order to raise tensions. Maybe it started out as a joke and then became part of the story. Maybe some comment by a police officer got misinterpreted.
You see, the Starbucks in Park Hill, Denver, CO, is at the end of a small, three-unit strip mall just off Colorado Boulevard. The middle unit in that strip mall is a Domino's Pizza. It never occurred to the staffs or owners of either store that they were on opposite sides of the culture war. In fact, the Starbucks owner was friends with the Domino's owner, and had actually organized a generous effort with other nearby strip mall tenets to help cover the paychecks of the Domino's employees during the nationwide Domino's store closures. But, nationally, Domino's and Starbucks had become symbols, and none of this small-business solidarity mattered.
According to the mainstream version of the Starbucks arson story, the police waited to move in because they were waiting for enough reinforcements to completely surround Starbucks. According to the right-wing infosphere version, police waited to move in because they thought the looters were left-wingers attacking the Domino's, and—like many police forces throughout America in 2020—they were under orders not to intercede in property crimes as long as nobody's life was at risk. However, once it became clear that the Starbucks was being attacked, not the Domino's, the call came from Mayor Hancock (a Democrat, of course) to intercede after all and arrest all the looters. In short: Mayor Hancock was alright with left-wing rioters in his city, but not right-wing rioters.
I'm fairly sure this was false. No support for this appears in any public, original reporting with firsthand knowledge of the scene. During the George Floyd riots, there was no pattern of Democratic mayors protecting politically left-leaning businesses while leaving right-wing businesses to the flames; Democratic mayors ceded control of the streets to rioters pretty consistently. Even if he were so inclined, no mayor who wanted to win re-election would give police explicitly partisan enforcement orders; police forces leak like a sieve, and every mayor knows that.
But, as usual, it didn't matter whether it was true or false. It mattered that websites conservatives trusted were reporting it, sometimes complete with alleged quotes from police officers saying things like, "We were under orders to let you have your protest at Domino's, but then we realized you weren't actually heading for Domino's, so the Mayor let us move in." (I never figured out where these quotes came from.) It mattered that, after the Floyd riots and conservative derision toward Democratic complicity in rioting, this story seemed just reasonable enough to be true.
It mattered, in short, that conservatives believed it. Some sizable contingent of the right now believed that it was a demonstrated fact that Democratic mayors were withdrawing police protection for conservatives while keeping it for progressives. This was hardly the first false story vomited up by the right-wing infosphere during the election chaos, but it was one of the most immediately consequential.
The next six Starbucks burned quite easily. In one case, grenades were used.
On December 22nd, the Supreme Court of the United States weighed in on the Pennsylvania situation one more time. In a unanimous decision, the court agreed with a number of lower courts which, by now, had largely agreed that the question, "Which Pennsylvania electors are legitimate, if any?" was no longer in the hands of the judiciary. The entire Supreme Court agreed that the question was now in Congress's hands. However, that was the limit of Supreme Court unity.
The four conservatives filed a "concurring opinion" that laid out a fierce, detailed argument that Gov. Wolf had once again violated the Constitution and both state and federal law by refusing to certify the Republican slate of electors—both when they "legitimately" won the November election and when the Pennsylvania legislature had ratified them under Article II. While the matter was now in the hands of Congress, the court's conservatives made clear that, in their opinion, Congress had little legal choice but to certify the Republican electors and congratulate President Trump on his second term. "The presidential election in Pennsylvania was extremely close, and foreign interference challenged the counting of votes as never before," Justice Kavanaugh wrote toward the end of an 18-page stemwinder. "Yet all the votes were counted, according to the laws of the State of Pennsylvania. Every challenged voter had the opportunity to prove their votes were valid, as described in the laws of the State of Pennsylvania. The election yielded a clear winner under those laws, and no attempt to handwave those laws away can deprive the President of his legitimate claim to a second term in office. Were Congress to place politics ahead of the votes of six million Pennsylvania voters, the laws of their state, and Article II of our Constitution," he concluded, "it would profoundly, perhaps mortally, wound Americans' belief that we are governed by laws instead of men."
The four progressives filed a second "concurring opinion" that laid out a fierce, detailed argument that Gov. Wolf had acted appropriately, given the extraordinary situation and the "absurd" restraints the U.S. Supreme Court had placed on Wolf's attempts to rectify the situation. While the matter was now in the hands of Congress, the court's progressives made clear that, in their opinion, Congress had little legal choice now but to accept Gov. Wolf's certification that no legitimate electors from the State of Pennsylvania existed, count the electoral votes without Pennsylvania, and congratulate President-Elect Biden. "The voices of Pennsylvania voters were muzzled, at first, by a hostile foreign power. This was alarming, but not shocking. The enemies of freedom have always sought to silence free and fair elections," Justice Sotomayor wrote in her 11-page concurrence. "Shock came later, when the people of Pennsylvania were muzzled a second time—this time, by this very court. The Constitution dies without the belief of American citizens, and, in ordinary times, this court is the institution ultimately responsible for sustaining that belief. Instead, we denied the Constitution's protections to the People of Pennsylvania. Responsibility for the Constitution now passes to Congress. We have not given them an opportunity to listen to the voices of Pennsylvania's six million disenfranchised voters. We have not allowed a valid slate of electors to cast electoral votes. Congress must now cope with the consequences of our folly."
Roberts wrote the "unanimous" majority opinion, which read, in toto, as follows: "For the reasons stated in the opinion below, the judgment of the U.S. Court of Appeals for the Third Circuit is affirmed. It is so ordered."
Though Michigan's electors were not party to this case, this effectively settled the Michigan question as well, at least as far as the judicial branch was concerned: they were sitting this one out.
On December 23rd, the Vice President of the United States and the U.S. Archivist were supposed to receive from each state a single set of valid electoral votes in sealed envelopes. Obviously, in the cases of Pennsylvania and Michigan, that did not happen.
From Pennsylvania, the Vice President and Archivist each got two full sets of electoral votes (from the Democratic and Republican slates), plus a note from Gov. Wolf saying that there are no Pennsylvanian electoral votes.
From Michigan, they received the Republican and Democratic votes, plus a certification from Gov. Whitmer that the Democrats were the true and correct electors for the state of Michigan. (Speaker Chatfield and Leader Shirkey also sent certification for their Republican electors, but these certifications were not recognized by statute.)
As required by 3 USC §11, each putative slate had also lodged a copy of their votes with a federal district judge in the district where they voted. For obvious reasons, each competing slate made use of the highest-ranking judge in their district who had been appointed by a President of the same party. (Federal judges are officially non-partisan, unlike Pennsylvania state judges, so there's no such thing as a “Republican judge” there; only a “Trump judge” or a “Bush judge.” Sorry, Roberts.) In Pennsylvania, the Republican slate sent their votes to Chief Judge John E. Jones of the U.S. Court for the Middle District of Pennsylvania. The Democratic slate, which had voted in Phildaelphia, went with Judge Nitza Quiñones of the Eastern District of Pennsylvania. In Lansing, both slates voted in the Western District of Michigan, where there are no sitting judges appointed by Democrats, so both slates sent their votes to Chief Judge Robert Jonker, a Bush 43 appointee.
Vice President Pence's responsibility now was simply to bring these votes, still sealed, to Congress, where Congress would decide which votes were valid and count them up. Pence's legal team quietly mulled its options. If that sounds ominous... it should.
If “no certificate of vote and list” of electors were received by this date, Vice President Pence was required, by law, to issue “demands” to the Secretary of State of the states in question, and to the district courts in which the electors were supposed to have voted, insisting that they immediately send him such certificate and list. Pence did not do this, suggesting that Pence believed he had already received all the lists and certificates the law required.
On December 24th and 25th, it was Christmas. Everyone healthy logged off and tuned out for a couple days. This meant that only the worst and most toxic people were left online, feeding off one another in spirals of outrage. Gov. Whitmer's mansion was destroyed by arson on Christmas Eve; Leader Shirkey's home burned the next day. But I had a lovely couple of days. My podcast released its annual Boxing Day episode on December 26th. Life went on, in most ways, for most people.
By December 27th, arson attacks had become so widespread, against so many targets (and, in the Twin Cities, actual Targets), that armed, politicized "citizens' brigades" patrolled the streets of many cities at night, guarding businesses from... well, mostly from the other side's citizens' brigades. This actually worked fairly well, and property violence declined sharply as the "citizens' brigades" allowed police to shift from a reactive to a proactive stance on the civil unrest.
Still. We'd already hated each other before all this started. Now we'd finally reached the point where the only way to keep our hatreds at bay was to point guns at the others. Worse, as in Weimar Germany, neither side trusted the police to do it. After the riots of Spring 2020, the Left treated police as the enemy, and the Right was so dismayed by police non-response in those riots that they no longer trusted cops to stop arsons and assaults.
On January 3rd, 2021, as the newly-elected Congress convened for the first time, House Democrats were worried about Vice President Pence. They did not trust him to deliver the electoral votes to Congress fairly. After the usual day-one niceties of passing the House Rules and re-electing Speaker Pelosi, they turned quickly to the business of the presidential election. By the end of the day, they had opened an investigation and formally subpoenaed both Vice President Pence and Archivist of the United States David Ferriero (an Obama appointee still serving in the Trump Administration) for all electoral certificates and lists they had received.
Pence resisted the subpoena, and Attorney General William Barr's Department of Justice quickly produced a memo that argued (compellingly, and, for my money, correctly) that the Vice President could not be subjected to a subpoena of this nature. Archivist Ferriero was also bound by the DoJ's judgment, and respected it. The House and the Executive Branch took a similar issue to court in the 2019-2020 dispute ultimately known as Trump v. Mazars, and, after many months, the House eventually lost. The electoral votes would be counted in just three days; there was zero chance of getting the subpoenas resolved in court in time.
On January 4th, the House issued subpoenas to Judges Quiñones and Jonkers, and to Secretary Boockvar and Secretary of State Jocelyn Benson of Michigan. All parties immediately complied with the subpoenas.
Quiñones sent the only electoral votes she'd received, those of the Democratic electors who voted in Philadelphia. Chief Judge Jonkers sent the votes of both the Democrats and the Republicans who'd voted in Lansing. I've no idea whether this is an accurate depiction, 'cause I don't know Jonkers from Adam, but the characterization Jonkers received in the press in the weeks following was, “I'm not going to be the guy who puts his finger on the scales of the election for the leader of the free world. I'm too damned old for that crap.” So he sent both slates.
Sec. Benson sent the Democratic electoral votes certified by Gov. Whitmer. Sec. Boockvar repeated Gov. Wolf's certification that Pennsylvania had cast no electoral votes.
On January 6th, 2021... hoo boy, January 6th, okay, let's do this...Congress officially counted the electoral votes.
This is ordinarily a straightforward process, but the law sets out detailed procedures for handling a disputed election. These provisions were created after the disputed election of 1876, which was not until March 1877 after a bitter compromise. Enshrined in 3 USC §15-18 (and explained in this CRS report), their purpose was to ensure the settlement of any disputed electoral votes in a manner agreeable to everyone. Although these provisions were activated in 1969, 2001, and 2005 to settle minor disputes, they had never been tested in a serious way.
That changed today.
As we went into today, there were many possibilities, but you could boil them down to basically four:
Pennsylvania's Republican electors are counted. Trump wins the presidency, 277 – 261; Michigan doesn't matter.
Pennsylvania's Democratic electors are counted. Biden wins the presidency, 281 – 257; Michigan doesn't matter.
No electoral votes from Pennsylvania are counted. Michigan's Democratic electors are counted. Biden wins the presidency, 261 – 257.
No electoral votes from Pennsylvania are counted. Michigan's Republican electors are counted, OR no electoral votes from Michigan are counted. Either way, Trump wins the presidency, by at least 257 – 251.
Because of parliamentary procedure (which we'll describe when we get to it), it was widely believed that whatever happened to Michigan's electoral votes would likely control the outcome for Pennsylvania as well. And, because states are resolved alphabetically, Michigan would be decided first. That meant that, quite suddenly, after months of exhausting focus on Pennsylvania, now Michigan, with its sudden reversal of electoral votes in mid-December, was abruptly at the center of the universe.
Per 3 USC §15, the session began at 1:00 PM Eastern Standard Time. The session was a joint meeting of the House and Senate, similar to the joint meeting they hold each year for the State of the Union address. The Vice President of the United States was designated presiding officer, as the 12th Amendment required.
The events of this session had been pre-gamed and war-gamed and choreographed for days. Each side knew what the other side's options were, and how they would respond to each. Although millions of people watched live on every network, the result was all but foreordained (with both parties' reactions planned well into the next week). But I won't spoil the surprise.
Starting with the beginning of the alphabet (Alabama), the Vice President opened each of the electoral votes before Congress and handed the votes to the tellers. There were four tellers: two from the Senate and two from the House. By long tradition, each house designated one teller from each party. In this case, Rep. Zoe Lofgren (D-CA) and Rep. Rodney Davis (R-IL) had been selected for the House, and Sen. Blunt (R-MO) and Sen. Klobuchar (D-MN) for the Senate. They counted the results in order, while one of the tellers announced, after each vote had been counted, something like this:
“Mr. President, the certificate of the electoral vote of the State of Arkansas seems to be regular in form and authentic, and it appears therefrom that Donald J. Trump of the State of New York received 6 votes for President and Michael Pence of the State of Indiana received 6 votes for Vice President.”
Then Michigan arrived.
Vice President Pence opened and presented to the the tellers a single set of votes: those of the the Republican electors appointed at the eleventh hour by the Michigan legislature. He did not present the votes of the Democratic electors. The law required Pence to present Congress with all the electoral papers he received, but Pence's legal team advised him that this statute permitted some degree of discretion, which Pence now exercised to judge that the Michigan Republican slate had superseded the Michigan Democratic slate.
This maneuver strikes me as sophistry—there's few more obviously-worded non-discretionary ministerial duties in the U.S. Code than the Vice President's duty to present “all the certificates and papers purporting to be... electoral votes.” Moreover, there's little chance the Senate Parliamentarian agreed with Pence, because this directly violated the precedent set by the Hawaii electoral count in 1961. (See Deschler Ch. 10 §3.5) But we live in an age where maximalist interpretations of statutory discretion are routinely embraced by both parties and rewarded by courts, and, besides, who was going to stop Pence? The Supreme Court had opted out of this debate, and Congress is constitutionally the only competent judge of its own proceedings, anyway. Its rules simply did not contemplate the possibility that the Vice President would attempt to interpret this ministerial duty as a discretionary duty. And we live in an age of bipartisan, unchecked constitutional hardball.
As the single set of votes was received, there was an obvious commotion at the tellers' table, and finally Sen. Klobuchar – whose turn it was to announce the vote result – took the microphone (obviously pushing back Rep. Davis), and announced,
“Mr. President, the certificate of the electoral vote of the State of Michigan does not appear to be regular in form or authentic. They indicate that Donald Trump received 10 votes, but are not certified by the state's executive.”
As the assembled realized exactly what had happened, the entire chamber erupted in boos, jeers, and more than a few shrieks, both from the gallery and from the floor. Democrats screamed shame at Pence for not recognizing the democratically-appointed electors from Michigan; Republicans screamed shame at Klobuchar for not recognizing the republiquely-appointed electors from Michigan. Each side was about equally convinced that they were fighting for the true voice of the American people, and that the other side was trying to silence it. This was not altogether true of the politicians (who view all such emotional grandstanding through a somewhat jaded lens), but it was certainly true of the fans jeering in the gallery. Each side believed it represented the legitimate outcome of the election, and that the other side was illegitimate. I've put those in italics because “legitimacy” is one of those political-science nerd terms that's about to enter household use the way “contact tracing” did a few of your months ago.
It surely did not help that Democrats, by and large, had come to believe that America was (or ought to be) a democracy, whereas Republicans, by and large, believed America was a republic. (Historically, despite the party names, this has not been true.) This made Democrats inclined by default to support the outcomes of popular elections and Republicans inclined by default to support the outcomes of votes by elected representatives—precisely the question that faced them today.
Eventually, order was restored, through a combination of heavy gavelling and the Sergeant-at-Arms' liberal deployment of Capitol Police to silence the gallery.
Speaker Pelosi was on her feet from the moment the kerfuffle erupted, awaiting recognition. Vice President Pence now recognized her. “For what purpose does the gentlewoman from California rise?”
“Sen. Schumer and I object to the counting of the votes presented from the State of Michigan on the grounds that they are not the authentic votes presented by that great state. I have those votes here.” She held out the electoral votes received from Gov. Whitmer.
“Has Sen. Schumer signed this objection?” asked Pence.
“He has, and my aide is bringing it up to you now.”
Pence inspected the objection briefly. “An objection presented in writing and signed by both a Representative and a Senator complies with the law, title 3 of the United States Code. The clerk will report the objection.”
Under 3 USC §15, the objection forced an immediate stop to the count of the electoral votes, and the Senate immediately withdrew from the House chamber so that both houses could separately consider the objection. The House and Senate were charged with determining whether to sustain the objection or not.
However, the law, untested as it was, was unclear on exactly what they were to resolve. According to Speaker Pelosi, there were two slates of electors from Michigan. But Vice President Pence had only presented one of those slates to Congress. Did Congress have the right to choose between the Democratic and Republican votes? Or were they only voting whether to accept or reject the Republican votes Pence had presented? Neither law nor precedent was clear.
What law and precedent did make clear was that Congress was not permitted to decide whose electoral votes counted based on who Congress wanted to win. Congress was required, by law, to determine who (if anyone) had cast valid electoral votes under applicable state and federal law.
Mitch McConnell's new Senate featured a smaller Republican majority, but it was a great deal purer: John McCain was dead and Susan Collins had lost her election campaign in Maine. The only moderates left were Lisa Murkowski and arguably Mitt Romney. Even if both of them defected to the Democrats, Vice President Pence still wielded the tie-breaking vote in the Senate. Sure enough, the Senate voted 51-49 against Pelosi's objection; the Senate would accept the Republican slate from Michigan. The Senate's official reasoning was straightforward: the Constitution left the right to appoint electors to the state legislature, which has the option (but not a requirement) to award electoral votes to the winner of a statewide election. Michigan state law itself specifically granted authority to the state legislature to resolve electoral disputes. The state legislature had appointed electors accordingly. Those electors had voted. Their votes must be counted. (It helped that Michigan's reason for doing this – protecting the integrity of not Michigan's but Pennsylvania's election from Democratic attempts to delegitimize it – was, in the eyes of Republican senators, quite noble.)
Speaker Pelosi's new House was overwhelmingly Democrats, and they swiftly voted to reject the Republican slate appointed by the legislature, on the basis that the state legislature had given up its right to directly appoint electors when it passed and enforced laws creating a statewide presidential election in Michigan. While Michigan law allowed the state legislature to resolve electoral disputes, there was no serious controversy over the outcome in Michigan for them to resolve. Therefore, the state legislature had no right to make direct appointments of its own.
(In point of fact, there was some evidence that Russia's possible interference in the election had included Michigan as well. However, Republicans trying to pooh-pooh Russian involvement had not made much of a case over it, while Democrats hoping for a Biden win had not been keen to call attention to it—besides, they assumed, any Russian interference had only helped Trump, not hurt him, right? It was therefore true that there was no formal judicial controversy over the results in Michigan.)
The House then voted to accept the slate of electoral voters that had been apparently elected on November 3rd and certified by Gov. Whitmer: the Democratic slate.
After the two hours of internal debate set by 3 USC §17, the two houses returned to joint session to report out their results. The whole nation drew a collective breath, because they knew what was about to happen, and they knew it was for all the marbles.
The Senate reported that it had accepted Michigan's legislature-appointed votes (the votes for Trump). The House reported that it had rejected the legislature-appointed votes and substituted the governor-certified votes (the votes for Biden).
Sen. Rick Scott raised an objection under a point of order. The Vice President had not presented the governor-certified votes to Congress—precisely because they had been overridden by the legislature's enactment. Scott argued that this decision not to present “clearly fallacious” slates of electoral votes to Congress fell well within the Vice President's discretion under the law, and that, therefore, under both the spirit and the strict text of the law, the House could only vote to accept or reject the votes that Pence had presented to Congress. Scott insisted that Democrats had no right to pull in other votes from “out of thin air” to approve them instead.
Or, at least, he tried. Sen. Scott made it about halfway through his second sentence before Vice President Pence interrupted him.
“Is the Senator from Florida joined in this objection by any member of the House?” The statute governing this joint session did not explicitly provide for points of order. Under the only available precedents, points of order were treated the same as any other objection: they had to be submitted in written form and signed by a member of each house.
But this had been planned for days. Sen. Scott answered, “I have my point of order in writing and am joined by Rep. Meadows of North Carolina.”
Vice President Pence nodded. As presiding officer, it was now his responsibility to rule on the point of order. During ordinary sessions in either house, Pence would have had the right to consult the members by having the point of order debated. His decision would also not ordinarily be final; both houses have procedures in place for overriding the rulings of the presiding officer. But not in this joint session. According to 3 USC §18, Pence has no power to entertain debate, and the two houses had no obvious power to override him. It seemed that Vice President Pence alone would settle this obscure point of order about the correct interpretation of an 1878 law you've never heard of—and his interpretation would determine the presidency.
Why did this ruling decide the presidency?
3 USC §15 includes two methods for resolving differences between the House and Senate in the counting of electoral votes, depending on how many slates of electors have been presented to Congress. If Congress is considering only one slate of electoral votes, then both houses of Congress must agree to reject it, or else the votes are counted. However, if Congress is considering more than one slate (in the language of the statute, “If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate”), and the two houses of Congress cannot agree which slate (if any) is valid, then the slate that was “certified by the executive of the state” is counted. In this case, Gov. Whitmer (D-MI) had certified the Democratic slate.
The two houses of Congress were obviously not going to agree on which slate of electors from Michigan was the valid slate. So everything hinged on whether, legally speaking, Congress was considering one slate of electors or multiple slates of electors. If one slate, then the disagreement would cause the Republican votes to be counted, and Trump would win. If more than one, then the disagreement would cause the Democratic votes to be counted, and Biden would win.
So I'm not exaggerating when I say that the entire presidential election came down to this single point of parliamentary order: did the House of Representatives have the right to present a new slate of electoral votes to Congress if the Vice President did not present that slate to Congress first?
In my view, the answer was very likely “yes.” Certainly, I can agree that the Vice President had the discretion to exclude obviously ridiculous purported electoral slates. For example, if I, random citizen, had mailed in a slate of electoral votes purporting to be by (and for) Mickey Mouse, Donald Duck, and the rest of the Disney gang, I think the Vice President would be well within his rights to ignore my mailing and simply present the actual electoral votes from my state. And I agree the Vice President has some reasonable discretion in this matter. But it seems to me implicit in the statute that Congress has the right to override the Vice President's discretion and, by a properly-signed objection, force the Vice President to recognize competing slates. In short, I agreed here with the Democrats on this point of order.
Unfortunately, I just used that nasty word “implicit.” When something is implicit in a statute, it means it isn't explicit, and that almost always means it's open to debate. And there are plenty of talented, respectable lawyers (as well as a bunch of partisan scoundrel lawyers, of course) who took the side of the Republicans in this particular parliamentary debate. What did Pence himself believe? I have no idea. Perhaps he sincerely believed the best way to read the statute was the opposite of the way I read it. But let's consider this choice from his perspective.
If Pence ruled that the House could not introduce a new slate of electoral votes, then Pence would be re-elected as Vice President of the United States. He would be violently denounced by the opposition press (which includes the entire mainstream media), yes, but he would be even more fiercely defended by his media allies. His political future would be assured, with a clear path to the presidency in 2024, and a cozy spot on the public-speaking circuit for the rest of his life. Pence knew as well as anyone what the polls said: that Trump voters mostly supported Republican attempts to save the election for Trump and that Biden voters opposed them, which meant he would have the support of about half the country anyway.
If, on the other hand, Pence ruled that the House could introduce a new slate of electoral votes, then his action would end the Trump presidency and inaugurate Joe Biden. His political career would end immediately. His media allies would turn on him and devour him. The opposition media would send a few half-hearted plaudits his way for doing “the right thing”, run an article or two about Pence's “profile in courage,” but they never liked him and he never liked them. There would be at least twice as many articles in Vox and the New Republic asking why anyone should call Pence “courageous” for (as Zack Beauchamp would have put it) “barely doing the very bare minimum democracy requires after years trying to undermine it”. Unless Pence utterly debased himself and became a full-blown progressive Democrat like the Lincoln Project alumni, the opposition would be happy to watch his own allies destroy him. Pence would be done, driven totally out of power.
This has happened before. Vice President Al Gore found himself in the same chair in January 2001, presiding over the electoral vote count from a disputed presidential election that had almost made him President. After Gore's December concession to Bush, he was devoted to shoring up President-Elect Bush's legitimacy. At the 2001 Joint Session, Gore personally gavelled down half a dozen members of the House who tried to raise objections to the Florida electoral vote count. It helped enormously – helped Bush, that is, and helped the nation to heal, while leaving Al Gore a joke. How much credit did the Right give Al Gore for this service? How many Fox News programs has progressive Al Gore hosted? Why on Earth would Pence want to become Al Gore?
Pence, for all the caricatures of him out there, has always hewed pretty close to the center of the Republican Party mainstream. On the rare occasion that he's staked a position too far to the left or right, he's been quick to cave to pressure. He's a useful guy to have in power if you agree with him, but he's no profile in courage. Nor is it clear that anyone had given him a convincing reason to consider falling on his own sword in this way.
Again, I don't know what went through Pence's head. But I can't say I was surprised when the gavel fell and Pence ruled in favor of the point of order. The House could vote to reject Michigan's Republican electors, but could not introduce a new slate of electors into consideration.
It took ten minutes to get the floor back under control. Pence ordered the gallery cleared and the doors to the capitol building locked by Capitol Police.
When, finally, things quieted down, Speaker Pelosi again rose. This had all been wargamed, and she was prepared. “Mr. President,” she said, “I protest the ruling of the chair. I protest that is legally wrong. I further protest the chair's conflict of interest in making this ruling and insist that he defer to the ruling of the Senate Parliamentarian. Sen. Schumer has signed my written protest.”
As I mentioned, in both the House and the Senate, the rulings of the presiding officer are not final. Each house has a method available to appeal and possibly override the ruling of the chair on a matter of parliamentary procedure. But this joint session has no such procedure. Indeed, it was agreed in 1869 that appealing the ruling of the chair in the joint session was impossible. (This was agreed only after a brutal debate, one that became so rowdy that it was quelled only because President pro tem Benjamin Wade threatened to have the sergeant-at-arms arrest any Congressman who refused to accept his ruling.)
However, the 1869 precedent was put into question by other precedents and by later lawmaking, and the modern statute offers at least the suggestion (3 USC §18) that there are circumstances under which either house can voluntarily withdraw to consider questions other than objections to a particular state's electoral votes.
Thus, under the precedents, there was no need for Pence to allow an appeal of his ruling. However, Pence would politically benefit from allowing more elected officials to participate in upholding his decision, there was very little political risk to doing so, and precedents offered him a small opening to do so. And so Pence devised, sort of out of thin air, sort of by looking at the statute and squinting very hard, sort of by looking very closely at Hind's Precedents Volume 3 (particularly § 1952),a procedure by which his rulings could be challenged: he ruled that the ruling of the presiding officer could be overturned if both houses concurrently agreed that his ruling was incorrect. He further ruled that each house may voluntarily withdraw to consider the objection. He then put the question to each house: should the Senate withdraw so that both houses may consider Speaker Pelosi's objection?
This had all been prepared for in advance. Both the House and Senate agreed to the motion by voice vote. The Democrats supported it because they saw it as the last chance to save the presidential election from open theft. The Republicans (mostly) supported it because they saw no harm in debating Pence's ruling for two hours before sustaining it. They'd already won, as they saw it; why not be a tiny bit gracious in victory?
Two hours of heated debate followed in each house of Congress. The debates were centered on the narrow question of parliamentary procedure and statutory interpretation about multiple slates, but, of course, Congressmen gave wide-ranging speeches about the entire election and the heart of American democracy and how bad Trump was and how bad Biden was and so on and so forth. In the end, both houses reached their foreordained conclusions: Democrats in control of the House of Representatives easily voted to overturn Pence's ruling. Republicans in control of the Senate narrowly voted to sustain it. Since both houses of Congress could not agree to overturn Pence's ruling, the ruling stood. House Democrats were not allowed to introduce new slates of voters to Congress. Michigan's Republican electoral votes would be counted. Assuming Pennsylvania followed suit, Donald Trump would be elected President for a second term, with Pence as his Vice-President.
As Pence's gavel fell, he said, “The ruling of the chair is sustained,” and, at that moment, almost every Democratic Senator (except Joe Manchin) and almost every Democratic Congressperson— 297 in all, substantially outnumbering the 237 Republicans in the room—silently stood, turned their backs to the rostrum, and filed out of the chamber. You may recall that Pence had taken advantage of an earlier disturbance to order the doors to the capitol locked, but Pence did not know that a sympathetic Capitol Police officer had spoken in advance to Speaker Pelosi and made certain that a particular door was left unlocked and unguarded. The Democrats left the chamber, left the building, and left town.
Only two remained behind (other than Manchin, who wanted nothing to do with what he called a “stunt”): the two tellers, Rep. Lofgren and Sen. Klobuchar. Meanwhile, the electoral count had resumed, and they'd made it as far as Nebraska by the time every Democrat was out of the chamber. At this point, Klobuchar rose to make a point of order – which was, of course, in writing and co-signed by Rep. Lofgren. “Mr. President, I respectfully suggest the absence of a quorum in the House.”
According to Article I of the Constitution, neither the House nor the Senate may conduct business unless a majority of the members are present. In practice, however, both the House and the Senate (over several centuries) developed a number of ways to flout this constitutional rule. Both houses presumed that there was a quorum present at all times after the first day of the session, and this presumption could only be overturned if a member asked whether a quorum is present, a roll call is taken, and it was proved that a quorum is not present. Often (especially in the House), it was not even permitted to ask the question. This is why you could often tune into C-SPAN to see a senator “debating” by giving a speech to a nearly-empty room. Rules and precedents governing quorum calls in the day-to-day work of the House and Senate were routine and crystal-clear.
Rules and precedents governing quorum calls during the quadrennial joint session to count the electoral votes, however, were practically non-existent. In the whole history of the United States prior to 2021, only twice had the question of a quorum been raised during the joint session: once in 1877 (Hind's §1956), and several times in 2001. In all those cases, the question had been ruled out-of-order by the presiding officer, either because it was a member of the House raising a question about a quorum in the Senate, or because it was made by a member of the House who did not have a senator co-signing. So the question had never been properly raised, and thus never ruled upon.
Pence ruled from the chair that the point of order suggesting the absence of a quorum was not permitted at this time. Lofgren and Klobuchar protested the ruling of the chair. "You cannot certify the election of a president without a quorum when the Constitution requires the presence of a quorum!"
To no avail: the Senate and the (now almost entirely Republican) House voted to uphold the ruling on the theory that 3 USC §16 forebade the joint session to dissolve "until the count of electoral votes shall be completed and certified" and 3 USC §18 prevented non-electoral questions from being put to the two houses. Besides, the GOP was not about to reward the Democrats for a quorum-busting stunt. "If our Democratic colleagues would like to participate in the count of the electoral votes," declaimed Sen. Cruz after both houses (once again) withdrew for debate, "they are welcome to file right back in that door. But we aren't here to let them derail democracy because they lost an election."
The rest of the joint session, raucous to this point, proceeded in eerie silence. The Vice President opened votes and passed them to the tellers. Lofgren and Klobuchar, the Democratic tellers, left after their quorum call failed, so Sen. Blunt and Rep. Davis counted the remainder of the votes. With no Democrats around to protest, Congress even certified Pennsylvania's Republican electors, not the blank slate Gov. Wolf had filed.
Finally, Pence read out the result: Donald J. Trump, 287 votes. Joseph Biden, 251 votes. “This announcement on the state of the vote by the President of the Senate shall be deemed a sufficient declaration of the persons elected President and Vice President of the United States, each for the term beginning on the 20th of January 2021.” Joint session dissolved. Gavel out.
On the Capitol steps, as dozens of cars picked up her members and whisked them away to undisclosed locations both inside and outside the United States, Speaker Pelosi called the proceedings a "farce." When asked by a Wall Street Journal reporter whether she accepted the results of the election, Pelosi answered, "What results? The Constitution says Congress can't do anything—certainly can't elect a President—without a quorum. Anyone with two eyes can tell you we didn't have a quorum in there today, even if our lame duck Vice President rules otherwise. I'm still waiting for the results of this election. So is America."
Congress did not attempt to find or bring back the wayward Democrats, for doing so would be interpreted as saying that the Democrats were right about the validity ot the proceedings. It was just as well, really; the Democrats had fled to obscure hideouts all over the country. The Capitol Police wouldn't be able to scrape together a quorum for weeks. Instead, Congress transmitted a message of congratulations to President Trump and invited him to begin planning his inaugural ceremonies.
As the sun rose on January 7th, roughly half the nation believed there was a President-Elect of the United States. Roughly the other half thought the electoral vote count had been conducted invalidly, and so there was currently no president-elect.
Suppose you're a Democrat that morning. How do you view what has happened?
From your perspective, Biden is the morally legitimate winner of the presidential election from the get-go, because Biden won the popular vote. But there's still this (as you see it) very stupid system called the electoral college, which you have been hoping to dismantle for years, and so Biden needed to win there, too. But he did! You absolutely believe that Pennsylvania's election was manipulated by the Russians in order to engineer a Trump win. Your side tried to fix that interference by counting more votes (what harm could there be in counting more votes, in giving more people a say? you wonder) and even by having a full-blown election re-do... but the Republican-controlled Supreme Court threw democracy under the bus.
At the very least, then, the votes in Pennsylvania should have been thrown out of the electoral count, because there was no way to know that they were accurate. If they had been, Biden's overall win would have been recognized. But Republicans weren't satisfied with corrupting the remediation process in disputed Pennsylvania; they went and overturned Michigan's perfectly successful election for political advantage. Under the law governing electoral vote-counting, even that should have failed, because the law said that, in an irresolvable dispute, the votes certified by the governor (the Biden votes) should be counted. But Vice President Pence, part and parcel of the utterly corrupt and depraved Trump Administration, had deployed parliamentary trickery and abused his power to override objections and ensure his own re-election. Democrats had then played the last card in their deck—quorum-busting—not even to put President-Elect Biden in power, but simply to prevent Trump from this ill-gotten win. And the Republicans simply ignored the Constitutional requirements for a quorum.
In short, you think the Republicans cheated. They cheated in the vote-counting. They cheated in the joint session. They cheated by stealing Merrick Garland's seat on the Supreme Court, then by putting that rapist Kavanaugh in, which threw a lot of 5-4 decisions Trump's way. They cheated by allowing Russia to get away with cheating. They even cheated by keeping the obviously-broken electoral college system in place a generation after the great and the good had all deemed the college illegitimate and morally defective.
Is this true? I'm not here to answer that. What matters is that you're a Democrat and you believe it. So do all your friends. So do all the websites you read and all the news channels you watch.
Okay, that was fun. Now suppose you're a Republican that morning. Now how do you see everything that's happened?
From your perspective, this whole episode has been a particularly egregious, horrifyingly violent sequel to the Democrats' attempts to delegitimize the 2016 election. Trump won on election night by getting more votes in Pennsylvania, plain and simple. Trump had defeated not just the Democrats, but the hopelessly biased journalism establishment, a high cultural establishment that treated all Trump supporters as racist pond scum, and the academics, Marxists, and antifa who had tried to foment a revolution a few months before. He'd even beaten back a widespread campaign of voter fraud, as exposed by Breitbart's investigations into Biden's so-called "turnaways" way back in November. Against these overwhelming odds, Trump had won, again.
But, once again, the other side refused to accept the result. Once again, they tried to pin Donald Trump's victory on a foreign tyranny—a power Trump himself had officially named a "rival power"—rather than on the good horse sense of honest, hardworking American voters. The Deep State had come out of the woodwork to support this conspiracy theory... not that the Deep State ever presented any actual evidence to the American People! Heck, the Deep State even admitted they had no proof to show for their outrageous claims! But that hadn't stopped the Cathedral—the Democrats, the news media, the universities, and the cultural establishment—from trying to use their rumors, non-evidence, and their own failed voter fraud, as an excuse to try and throw out the Pennsylvania election so they could rig a new election for Joe Biden.
When the duly-constituted Supreme Court of the United States repeatedly slapped the Democrats back, and repeatedly instructed them to allow the original results to stand, Pennsylvania's executive and judicial branches took the law into their own hands. Gov. Wolf tried to take away the electoral votes of his own state, even with his own legislature fighting back to recognize the legitimate election results. The scary thing was, it almost worked! If not for Vice President Pence's flat refusal to introduce the lawless, illegitimate Democrat ballots at the electoral count, the weird rules of the electoral vote count would have allowed the Democrats to shove this conspiracy theory down the American people's throats and steal the election away—and the news media, the academy, and Hollywood would have called them heroes for their destruction of democracy!
And—the unmitigated gall—the Democrats were still at it today! Their quorum-busting trick—even though the Republicans had rightly upheld the law by ignoring it—was for a purpose, which many Republican commentators had already guessed.
Naturally, because we are Americans, many of us took to the streets in protest of the other side.
Naturally, because this was the 2020s, the protests rapidly turned into riots—and, following the organized street violence of the past couple months—counter-riots as well. Seven died nationwide.
OANN reported exclusively on the violence from left-wingers; Fox News mentioned right-wing violence, but not until the 8th paragraph of its lead story. Meanwhile, The New York Times published a story on violence by right-wingers; left-wing violence was noted briefly in the 14th paragraph.
This wasn't mere political japes anymore, to either side. Lots of ordinary people (not just crazy Internet comments) were starting to use the word "treason" to describe the other side.
I don't think it will do much good to go through all the property damage caused, all the monuments destroyed, in the rioting of January 7th and days following. I think it will just be interesting to note that antifa and the boogs were now openly brawling in every major city center, some shots were being fired, and their "direct action teams" and "small business protection squads" very clearly had greater control over several downtown neighborhoods than their nominal mayors. Again: we've seen this before.
On January 8th, in Dover, Delaware, the Democrats put their new plan into action. The Democratic State House and Democratic State Senate passed a revision to their election code. Previously, a special election to fill a vacant seat in Congress could not happen in under 60 days. With these revisions, a special election could be held in just 5 days. Gov. John Carney (D-DE) signed the bill just after noon.
At 1:30 PM, Rep. Lisa Blunt Rochester (D-DE), one of Joe Biden's campaign co-chairs and speaker at his convention in August, left hiding and reported to Washington... where she tendered her resignation. She immediately ceased to be a member of Congress.
By close-of-business that Friday, Gov. Carney had issued writs of election ordering that a special election be held to fill Rep. Rochester's now-vacant seat in exactly 5 days, on Tuesday, January 12th. Like all House elections in Delaware, it was a foregone conclusion that the Democratic nominee would win. The Republican and Democratic parties had until Saturday night to name their candidates.
On January 9th, Delaware Republicans named Lee Murphy their candidate in the House special election, although they protested the irregular conduct of this particular special election.
The Delaware Democratic Party named their candidate: former Vice President Joe Biden, a resident of Wilmington, Delaware.
The Democrats' plan was now clear. Angry right-wing protesters, many of them driving in from Virginia, Pennsylvania, and upstate New York first protested, then rioted, then tried to burn down the state legislature, but police and National Guard prevented that.
On January 10th, Senate Democrats returned to the Hill. There was no use in their being absent, since they couldn't deny the Senate a quorum by their absence. The House of Representatives remained largely empty and entirely paralyzed. Any time the House moved to vote on anything, Speaker Pelosi (the sole Democrat in the chamber) made a point of order of no-quorum, and, under House rules (unlike the joint session rules), she had a clear right to do so. This invariably proved the absence of a quorum and scuppered any voting on anything—including several GOP attempts to change the quorum rules.
On January 11th, several lower courts, including the D.C. Circuit, refused to resolve the electoral dispute in Congress. This matter could only be resolved by Congress, they said. The Supreme Court refused to hear appeals.
On January 12th, Joe Biden was elected as Delaware's sole representative to Congress. You figure out what he's planning yet?
On Janaury 13th, the 9th Circuit Court of Appeals (which had gotten a case before it by some contrived means) disagreed with other federal courts, ruling that Vice President Pence had violated the law by refusing to present all the electoral votes to Congress. Within a few days, however, the Supreme Court summarily reversed the 9th Court's judgment by reaffirming that the controversy was non-justiciable, with only two dissents.
Throughout the week of January 10th, the Trump inauguration committee attempted to secure the relevant permits to celebrate President Trump's second inauguration in various places around Washington, D.C. Mayor Bowser flatly refused, on the grounds that Trump was not the incoming president. She gave all the necessary permits to the Biden inauguration committee instead, which got to work on a grand inaugural ceremony to take place in the customary location on the National Mall. Mayor Bowser placed the entire area under guard to prevent destruction by rioters. President Trump claimed that she had "begged" him for protection from the Department of Homeland Security, but he'd refused to "help this sham inauguration."
Congress had the power to order to mayor of Washington, D.C. to do whatever it wants, so the Republicans tried to override Bowser—but the House remained paralyzed by its lack of a quorum, so nothing happened. President Trump was forced to plan his Second Inaugural on the White House lawn.
Annoyance over the no-quorum shutdown finally pushed House Minority Leader Kevin McCarthy to ask the sergeant-at-arms to begin exercising Republicans' right under the Constitution to "compel attendance" of quorum-breaking Democrats. But House Democrats were thoroughly holed up in their own states. Many of them were "in hiding," although few of them managed to give up their social media accounts as they tweeted from "undisclosed locations" in their home districts.
On January 20th, as Inauguration Day loomed, Leader McCarthy, in conjunction with Senate Leader McConnell, adjourned Congress for three days.
That night, right-wing rioters attacked the inauguration square outside the capitol building. National Guard and local police pulled back rather than risk confrontation, leaving rioters to destroy bleachers and bunting. (Rep. Marjorie Greene, R-GA, was seen on the sidelines, encouraging the rioting.) Furious left-wing protesters soon realized what was happening and counter-attacked. The inauguration square became a brawl, involving somewhere between one hundred and two hundred people, before National Guard returned and dispersed the street battle. Several participants and law enforcement officers plus a bystander were hospitalized, but no shots were fired. Some of the bleachers (not all) were re-erected overnight, with much bunting and many other decorations quickly removed or rearranged to (more or less) hide the damage.
On Twitter, President Trump condemned the violence even though, in his words, he "admired" the right-wingers' "patriotic spirit" against Biden—whom Trump was now characterizing as an "usurper."
On January 21st, two inauguration ceremonies were held in Washington, D.C.
Chief Justice Roberts attempted to forbid "his" justices from participating, but Justice Ginsburg refused, and Justice Thomas followed suit.
At the White House, shortly before 11:00 AM, in a large Rose Garden gathering, President Trump swore the presidential oath, as administered to him by Supreme Court Justice Clarence Thomas. There was some concern that protesters, rioting just outside the gates, would storm the garden, but the Secret Service and a great deal of tear gas protected Mr. Trump. Trump's prepared remarks centered on the idea of healing the country and ending the strife that had arisen as a result of his re-election... although Trump couldn't help ad libbing some snide remarks at "Stealin' Joe." ("Has anyone even seen him lately? Or did they skip ahead and just put Kamala in charge yet?")
Meanwhile, inside the Capitol, at around 11:30, House Democrats finally returned, assembled, and put their plan into action. Because Democrats had won the House, they constituted a majority of the House by themselves—aka, a quorum.
However, the House was not in session. With the Democrats in hiding from the quorum call, the Republicans had adjourned for three days. The House would not resume its regular session until January 23rd. There was nothing anyone assembled could do about that. Even with a majority of the House present, they couldn't act as the House until they were in session.
At noon exactly, President Donald Trump's first term expired. The Democrats believed that Trump had not been re-elected. In fact, since they broke the quorum during the counting session, the Democrats believed no one had been elected President for the new term. According to the Twentieth Amendment, that meant the presidency fell to the Vice President... but Vice President Pence's term also expired at noon. In that case, 3 USC §19 says that, "If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President."
The Speaker of the House of Representatives was Nancy Pelosi. At exactly noon, she rose, announced her resignation from the Speakership and from Congress, walked up to the rostrum, and took the oath of office. Justice Ruth Bader Ginsburg administered the oath. The representatives then clapped for President Nancy Pelosi, leader of the Free World (according to them).
As her first official act, President Pelosi exercised her authority under Article II, Section 3 of the Constitution to call the House of Representatives into an extraordinary session, which would commence immediately. This order (assuming you agree that Pelosi was the President at the time) overrode Leader McCarthy's adjournment order from yesterday.
The House of Representatives immediately entered session and swiftly established the presence of a quorum. As their first order of business, the House swore in Rep. Biden of Delaware as a newly-elected member. As a second order of business, the House elected a new Speaker, since Speaker Pelosi was now President. By voice vote, they acclaimed the newly-elected Rep. Joe Biden the new Speaker.
With this complete, Speaker Pelosi announced that, under 3 USC §20, she had just submitted her resignation to Secretary of State Mike Pompeo. Since there was now no President, and still no Vice President, the Speaker of the House (for the second time in an hour) would become President.
Speaker Biden stepped forward, resigned his Speakership and his seat in Congress, and took the oath of office, again at Justice Ginsburg's hands. This, the Democrats believed, made Joe Biden the legitimate Acting President of the United States, in the absence of a real President. (There was still no real President because, according to the Democrats, the electoral vote count had yet to be completed.)
Then President Biden walked outside to where a cheering crowd of D.C. citizens who had been watching the proceedings on a jumbotron. He gave his inaugural address. His prepared remarks centered on the idea of healing the country and ending the strife that had arisen as a result of his election. "We've been through a terrible debate, and now it is time to put it behind us." He was forced to bring his speech to a quicker-than-expected conclusion when fights started breaking out in the Mall below him.
There were now two men claiming to be President of the United States, both with the support of one house of Congress.
There were no inaugural balls in D.C. that night.
You might think, "That's it, things are going to hit the fan now," but governments are remarkably resilient, even in their terminal stages. In this, it is aided by the population's lack of imagination. We cannot imagine what will come when the government stops, so it doesn't. We don't let it. South Carolina seceded on December 20, 1860, and South Carolina demanded federal troops turn over Fort Sumter to the "legitimate" state government in January 1861... yet Lincoln didn't become president until March 4th, 1861, the Confederacy wasn't ratified until March 13th, 1861 and open war didn't break out until April 12th, 1861. Both sides performed a ballet in which each tried to assert its rights and privileges without coming into direct conflict with the opposition. Major Anderson of the Union garrison in Charleston had already given up Fort Moultrie to the Confederacy way back on December 26th, retreating to Fort Sumter. In January, the Union sent a civilian ship to resupply Fort Sumter (not a military ship), but the rebels fired on it until it retreated. Union forces, still hoping for a peaceful solution, decided not to retaliate. In March, the Confederacy attempted to buy Fort Sumter, but Lincoln refused to recognize their government, so negotiations could not begin. Several outrages occurred on the frontier against the public officials or property of the two governments, which both the U.S. and Confederate governments decided to ignore for the sake of preserving peace. Lincoln attempted to resupply Fort Sumter with food only (no weapons or ammo), but the Confederacy refused to allow it. Lincoln sent the supply ship anyway. Only then—and only after much debate—and even then it was kinda Secretary of State William Seward's fault — did the Confederate government decide to bombard Fort Sumter. And so the war came—but it was nearly five months into the legitimacy crisis, and six weeks after President Lincoln took power. The music had stopped in December, but the ballet of power went on until April.
On January 22nd, our ballet began. President Trump, governing from the White House, nominated Chad Wolf to serve as Secretary for Homeland Security. (Wolf had previously served as acting secretary, somewhat irregularly.) Within a few days, the Senate would narrowly reject this nomination. But that wasn't the point of the exercise: the important thing was that the Senate voted on a Trump nominee, meaning the Senate recognized President Trump as the President of the United States. Trump also retained direct control of the bureaucracy, since none of his cabinet officials had resigned, none would recognize an attempt by Biden to fire them, and all of Trump's political appointees would recognize them... as would the top layer of the civil service (many of whom were Trump political appointees who had recently "burrowed in").
After his inauguration, President Biden moved into the presidential retreat at Camp David, meeting no resistance from the naval officers stationed there. Although he did indeed "accept the resignations" of all current cabinet secretaries with a memo purporting to fire them, Biden did not send replacement nominees to the Senate, knowing they would be ignored and harm his legitimacy. Instead, he fulfilled a campaign promise to send a bill for "DREAMer" illegal immigrants to Congress on "Day One" by sending it to the House, which swiftly passed it. Biden then vetoed a minor bill about flood reinsurance (a bill Trump had signed). As it originated in the House, the bill was returned to the House, which overrode the veto and allowed the bill to become law—but, in the process, formally recognized Biden's right to issue vetoes. Biden also issued a presidential pardon to Delancey Melvin, an African-American New York City man imprisoned for posession of cocaine. Melvin was released from prison by the end of the day, showing that the State of New York recognized his authority. Biden started reaching out to civil servants like Dr. Anthony Fauci, "just to get the lay of the land," but also to sound out his degree of support in the non-elected civil service (or, in Republican parlance, the Deep State).
Lastly, Biden signed an executive order cancelling the "Mexico City Policy." This policy forbids U.S. foreign aid from going to organizations that "perform or promote abortion as a method of family planning." Republican presidents (who oppose abortion) always reinstate the Mexico City Policy on their first or second day in office, and Democratic presidents (who do not oppose abortion) always rescind it on their first or second day in office. By rescinding the Mexico City Policy, Biden forced the USAID office (run by a Trump supporter, John Barsa) into direct conflict with international abortion providers like the Interntional Planned Parenthood Federation, which gets about $100 million / year in U.S. taxpayer funding when the Mexico City Policy is not in place. Naturally, after Biden rescinded the policy, IPPF applied for funding. USAID eventually would have had to reject the application, and IPPF would have sued, forcing the courts to recognize one president or another. We never got there, though.
Various press outlets recognized the governments you'd expect them to recognize. The Times and the Post referred to Biden as "President Biden" and Trump as "Mr. Trump." The Journal did the opposite. A few more regional papers in purple states split the difference and called them both "Mister." In this history, I've referred to both as "President," since both did actually exercise the powers of the President and both had a plausible claim to the office. At the time, however, nobody was doing that. The closest most journalists came to acknowledging the genuine murkiness of this election was in the ubiquitous jokes about the two popes of the Great Western Schism.
Throught the last week of January, both Presidents tried to keep the dance going, but it was not easy. Each Administration tried to avoid direct conflict (with a great many people in the Trump Administration working hard to restrain their President) while still finding ways to demonstrate their authority to the public. The lack of certainty in the executive branch paralyzed the "Deep State," of course, as various civil servants refused to do work for the Trump Administration or (alternately) for the Biden Administration. It also paralyzed Congress, which could only safely pass bills if neither President vetoed it. (The House Clerk would present bills to President Biden; the Senate Secretary to President Trump.) The care with which both sides strained to avoid direct conflict was a stark contrast with their bellicose public personas, especially Trump's furious Twitter posts about the "faker-in-chief." And, of course, Congress rarely does anything but posture at the best of times; you'd better believe they were out in force on the Internet and on the talk show circuit, attacking Trump as an illegitimate usurper, or defending him as the champion who took on left-wing usurpers directly and won.
A poll released this week showed that 51% of Americans thought Joe Biden was the valid President of the United States, while only 44% believed that of Donald Trump. (The remainder was unsure.) But Trump supporters easily dimissed this: "Oh, yeah, and much did the polls say Clinton was winning by? How about Biden? Yeah, I thought not." Besides, the 44% noted, given how much anti-Trump propaganda had been fed to Americans by the mainstream media, it was actually pretty incredible that Biden only led by 7 points in this poll. Plus, we don't settle voting rights questions by straw poll.
As of January 25th, the U.S. military was struggling with its role in this moment. On the one hand, it was absolutely vital that the military have a single commander-in-chief. On the other hand, it was absolutely vital that the military neither choose that commander-in-chief nor be seen as choosing it. The non-political, civilian-led military is a small-r republican value that was deeply, deeply drilled into American troops, and—perhaps uniquely among American political actors—they actually believed it, by and large. The military needed to remain non-political in order to effectively defend the homeland (also, more cynically, to protect itself from a vengeful Congress). These vital needs were now in conflict with one another, and there were some on both sides of the aisle calling on the military to intervene against Biden and/or Trump.
Today (January 25th), orders went out from the Joint Chiefs of Staff to all Armed Forces personnel. In several pages of thick, acronym-laden militarese, military leadership ordered everyone to chill out, carry on, and keep their damned mouths shut. Some of the letter's platitudes were laughable, like the line that went, "The military serves the American people under the direction of the Commander-in-Chief, and that has not changed." However, these absurd statements served their purpose: they communicated to the military and to outsiders that the Armed Forces were not only not going to solve this legitimacy crisis; they weren't going to acknowledge the crisis's existence if they could possibly avoid it.
In extremely secret meetings around this time, informally classified "TS/SAR/DETTP" (Top Secret/Special Access Required/Don't-Even-Tell-The-President(s)), military top brass admitted to themselves that they were playing for time. Their own branches' top lawyers vigorously disagreed with one another about who was, legally, the current President of the United States—but agreed that this was now principally a political crisis, not a legal one, thus not one the military could have an opinion on. The Joint Chiefs acknowledged that, if an international military crisis were to break out this week, like Russia annexing Belarus, the U.S. would likely have to stay on the sidelines, due to their lack of a valid command structure. In the event that an enemy took advantage of the current crisis and directly attacked the United States, they agreed they would take orders, not directly from SECDEF (whose legitimacy was also in question), but rather from Chairman of the Joint Chiefs Mark Milley "on behalf of" POTUS (whoever that was). They further agreed that Milley would "consider the perspectives" of both President Biden and President Trump, if it came down to it—but it would be Milley making the calls. This would constitute a (reluctant) military coup d'etat. Unfortunately, anything the military did at this point would be a military coup d'etat, which all fervently wished to avoid. And so they concluded by reaffirming their strong commitment to playing for time and doing nothing for as long as possible. We didn't find out that these meetings happened or what was said in them until much later, so none of these discussions had any impact on the deteriorating environment outside the military, but it still seems like an important missing piece of the jigsaw puzzle of those final weeks.
On January 26th, news leaked out about a very paranoid Trump Administration applying elaborate loyalty tests and evaluations to personnel throughout the executive branch, including low-level civil servants. This sometimes involved disguised federal officers offering Trump Administration officials the chance to join the forthcoming Biden Administration, if only they'd help with one little harmless appointment or regulation Biden supposedly wanted changed. The Trump Administration wanted to know how many of its officers—and which ones—secretly supported Biden.
The answer, as it turned out, was "several." They were quickly sacked.
On January 27th, the United Nations refused recognition to Ambassador Kelly Craft, Donald Trump's ambassador to the U.N. (since 2019). Prior to the election, Joe Biden had announced his intention to name Susan Rice to this position (she held the job from 2009-2013). Since the election, Biden had not formally nominated her, because she could not be confirmed by the Senate. The U.N. recognized Ambassador Rice anyway, and refused to acknowledge U.S. Security Council votes by any other person. Rice humbly took her seat, arguing that it was better for the U.S. to have a vote at the U.N., despite the "irregularity" of her "appointment," than to be shut out of international representation entirely.
How good of a ballerina do you think Joe Biden is? How about Donald Trump? Frankly, it was remarkable they made it a week. On January 30th, the inevitable crisis arrived. President Biden had been working his contacts in the bureaucracy all week and, today, with the U.N.'s wind blowing at his back, he made a play for control of the notoriously pro-Biden State Department. Biden knew Trump didn't even like State very much, and so he gambled Trump would ignore the loss of State rather than fight for it. State Department staff locked out Secretary of State Mike Pompeo and several of his deputies that morning, installed their own Acting Secretary of State, then began taking orders from President Biden, who thereby issued several official communiques to foreign leaders—including a diplomatic letter formally declaring that the United States was rejoining the the Paris Climate Accord.
Humiliated on the international stage, quickly losing legitimacy in the eyes of foreign governments, President Trump spent a frustrating hour trying to regain control of the Harry S. Truman Building by cutting its power, phone lines, internet, and so forth, but the building's a fortress. Finally, feeling impotent and profoundly insulted, President Trump lost patience. He ordered President Biden arrested for treason.
This was not actually the first time President Trump given this order over the past two weeks. He was talked down each time. But, after the debacle at the U.N. on the 27th, Trump had eased many of his less bellicose advisors out of his inner circle. For example, Jared Kushner was no longer in the room, but Stephen Miller was front and center. Even these more bellicose advisers, fearing the consequences of an arrest attempt, tried to offer alternatives that wouldn't spark a dangerous confrontation. But President Trump would not be diverted this time. He wanted Joe Biden arrested. Eventually, what was present of his cabinet acquiesced, Judge Trevor N. McFadden signed an arrest warrant, and the White House dispatched the U.S. Marshalls Service to take President Biden into custody on charges of insurrection, seditious conspiracy, and (that old chestnut) violating the Logan Act. In order to "ensure the security" of Camp David itself, the White House also deployed the Federal Protective Service, reinforced by unbadged Department of Homeland Security officers from a variety of other DHS forces. (If this sounds familiar, that's because Trump did the same thing in the same way when he deployed DHS forces in Portland in July.) In all, a force of a few hundred men left Washington for the drive to Camp David.
The Marshalls and DHS, like other parts of the Administration, had recently been tested for loyalty, and so the force that headed out to Camp David to confront the Vice President, armed to the teeth, was hand-picked for being a force of solid Trump supporters. They believed in their President, and they believed in the need to arrest the "traitor" Biden—probably more than the Cabinet did.
However, President Biden was not an idiot. Over the past week, he'd had his own Praetorian Gua—er, sorry, protective detail—thoroughly vetted. (Biden was currently protected by a mixture of Capitol Police, Secret Service, and a couple of Navy personnel stationed at Camp David who disagreed with the Joint Chiefs' decision to keep the military out of it.) They, too, believed in their President, and would not back down for any of Trump's "fascist thugs" except at Biden's order.
Driving from downtown Washington to Camp David takes a little over an hour, and there was some time involved staging and authorizing this operation as well. By the time the force left Washington, it was mid-afternoon, and rumors were spreading about what was going on. The press didn't yet have the story, but President Biden did.
I don't know whether you believe him, but Biden later claimed he considered retreat. But he considered Camp David too symbolically important to give up, and, besides, where would he go? He said he then considered surrendering himself to the federal agents and allowing the courts to sort it out. But Biden said he had no faith in Trump to accept the courts' judgment; if taken into custody, Biden was pretty sure he'd never leave jail. He said he almost did it anyway, to avoid bloodshed, but changed his mind when he realized this wasn't about him; it was about protecting the integrity of Presidency of the United States, which was bigger than him and even bigger than the people around him. Finally, Biden settled on his last option: confrontation.
But Biden only had around seventy men. Many were better trained than the bulk of the force coming this way, but few were better armed, and they were outnumbered. So Biden picked up the phone and called Larry Hogan, the Republican Governor of Maryland. (Camp David is in Maryland.) Hogan picked up, and Biden said (this is a matter of public record), "Governor, it's President Biden. There's a thousand men with guns driving up I-270 to shoot at me, and I'm ordering the Maryland National Guard to Camp David. Now I only need to know one thing right now: are you gonna fight me on this?"
Hogan was a Republican. But he was a Maryland Republican, who enjoyed high approval ratings in a state where Biden won by 48 points. Hogan had survived this long by setting himself against Trump. He'd supported the impeachment inquiry, and publicly considered a 2020 primary challenge against Trump. He had, in fact, voted for Biden, and had publicly condemned several of the Republican "stunts" that had contributed to the impasse in the electoral college. And now the man he voted for, who may or may not be the President of the United States, was on the phone asking him for soldiers to defend him from a violent, seemingly unprovoked attack from the man Hogan had wanted impeached. This was not a decision Hogan wanted to make, but it was choosing-sides time: whose claim to the throne was Hogan backing? Was he with President Biden or President Trump?
For once, his personal preferences and the political realities of being a Republican in Maryland lined up perfectly. Hogan took only a few moments to reply, "They're on their way, Mister President."
"Governor, Your nation thanks you. And, Larry—keep me posted. I don't know what exactly how bad or when this is gonna get. [sic]"
Hogan hung up, called Maj. General Timothy Gowen of the Maryland National Guard, told him President Biden had called him into emergency service, and ordered him to get as many armed men as possible to Camp David as quickly as possible. They might be needed within the hour.
The U.S. military is a close-knit group in the calmest of times, and this was not a calm call-up. This was a frantic attempt to scrape together armed men on a ludicrous time table. Half of Maryland knew about it within five minutes. President Trump knew about it in ten. (The press got it in fifteen.)
Trump didn't know what exactly was going on, but he knew there were thousands of well-trained troops in the Maryland National Guard, more than enough to stop his police action. So Trump did what seemed natural: he called up everyone else he could think of and sent them to Camp David. A large chunk of the Secret Service got sent. So did any FBI or ATF agents the Administration believed to be loyal. Trump tried calling up the D.C. National Guard, too.
If this were the Roman Republic, or any of a hundred third-rate democracies, this is the moment when the military would have staged its coup, put tanks in the street, and installed an "interim President" while overseeing a new election and/or the drafting of a new Constitution. But our military commanders knew how this worked out for the Romans. They knew full well that, once you use the military to settle a succession crisis, there's no going back; the military will settle every succession crisis henceforth, and that level of power would rapidly corrupt the military, not to mention destroy the American Constitution. So they stuck to their policy of wait-and-see. They refused to seize control of the government. If only we had been so lucky.
Instead, the D.C. National Guard acknowledged Trump's order, but deliberately moved so slowly that the crisis was over before they got on the road.
There were plenty of non-uniformed people involved at Camp David now, too. Protests around the White House redoubled as word of the arrest warrant finally got out. Other protesters (and counter-protesters) from half a dozen states piled into vans and headed for Camp David. So did every right-wing and left-wing militia within two hundred miles. By the time the original force of U.S. Marshalls and National Protective Services arrived at the gates, the place was a zoo even without the Maryland National Guard (which had yet to arrive).
The Marshalls rolled up, with Homeland Security police clearing Park Central Road of protesters (the road was nominally closed for the season, and snowy, but that didn't stop anyone). They told the entry guards they had a warrant for the arrest of Mr. Joseph Biden, believed to be on the premises, and that they had a right to enter and take Mr. Biden into custody. Entry guards said that, by order of the President of the United States, the Marshalls would not be allowed to enter, and that a warrant to arrest the President was not recognized anyway.
It might have settled into a nice, quiet, extended standoff at that point. A perimeter could have been established while both sides made reports and waited for orders. There was still time for cooler heads to prevail. The breaking point was clearly coming, but it didn't have to be today. After all, Fort Sumter was not the first Union fort seized by the Confederacy; it was the twenty-second. The first twenty-one all fell peacefully. (So did a variety of arsenals, mints, and pretty much the entire Union Army in Texas.) Although loyal to their respective Presidents, almost nobody in the assembled police and military forces wanted this to be their Fort Sumter. They didn't want to fire on their brothers. They wanted to do their jobs and then go home.
But they had neither the manpower nor the logistical support to handle the protesters (and counter-protesters), who had not been part of anyone's equation. They would have been hard-pressed had this been a simple case of protesters versus law enforcement, but this was nothing of the sort. It was anti-Trump protesters vs. White House security forces vs. Camp David security forces vs. anti-Biden protesters. Few of them were particularly well-trained for this sort of thing. Protesters pressed against each other and against both security forces. The Maryland National Guard still hadn't arrived. And, as one mass of protesters surged threateningly toward the entry gates, somebody—probably one of the counter-protesters, perhaps trying to be helpful—opened fire. Then all hell broke loose.
The Battle of Camp David swiftly escalated, as both presidents called upon every military or police resource they could command, cajole, or trick into supporting them—even though command-and-control on the ground was swiftly crumbling. Biden had a time advantage with the Maryland National Guard on its way and the home field advantage, but Trump got on Twitter and literally called out the militia:
("The Storm is here!" was a none-too-veiled reference to QAnon.)
General Milley, Chairman of the Joint Chiefs, quietly ordered Army, Navy, Air Force, Marines, and Space Force under the direct authority of the Executive Branch to find reasons to stay out of the fray, but some units, or even individual soldiers, answered the call of one president or another anyway.
That burst the dam. The fact that federal officers were now shooting at each other over the crisis, however reluctantly, removed all restraint from everyone else with an opinion and a weapon. The "citizen's brigades" that had tensely patrolled the streets for weeks now actively turned on one another and began hunting the other side down. Protests that erupted in every state now didn't even pretend to be protests before descending into rioting. Americans, insane optimists that we are, publish all our significant political donations online, through OpenSecrets.org, complete with name and ZIP code. This gave vigilantes a ready-made hit list of houses to loot in the name of "justice." Military and police units sent to quell the disturbances sometimes joined them instead. Even some mutinies and counter-mutinies broke out at military facilities around the country.
This was our first lesson in a long, painful education: this new Civil War was not going to look anything like the original, with its neat rows of men marching across the country so they could line up, face one another, and fix bayonets. There was no organized Confederate government waiting in the wings to lead one side or the other coherently against the Federals. This was sheer, lawless, unorganized, mass violence. It was less 1860s Northern Virginia and more 2010s Libya.
The White House, its security force depleted and now facing ten times the security pressure it was under just a few hours before, couldn't handle the riots. President Trump was loaded onto Marine One and evacuated. President Biden also escaped Camp David on a helicopter before it was overrun. Both were in the air when they planned their next moves—securing new operational bases and commencing their counterattacks. Soon enough, so was a reluctant General Milley, who would become a household name—and more—in days to come.
The war has begun. This completes our purpose. If we were to continue, it would no longer be as political history but military history. So we will stop here.
At the beginning of all this, I asked you to do me a favor: tell me this was a fluke, and why. Show me why this wouldn't—couldn't—happen. Yes, of course, there are a hundred “for want of a nail” moments in this history; there always are. The election margin could have been just a little larger, in either direction, and then no amount of suspicious Russian activity could have put the result in doubt. Tom Monaghan's donations didn't have to be exposed at such an inopportune moments. The early militia battles in Pennsylvania wouldn't have happened if police had caught the ballot thieves first. Congress could have passed a better bill in 1877 for resolution of electoral disputes, or reformed it before the 2020 election. Even in the final days, the military could have staged a coup. It would have ended the American Experiment forever, but spared us the bloodshed that was coming. I do not mean to suggest that this was the only possible way it could have played out. It was the way it happened for us; it may be different for you.
Yet these seem like mere incidentals. If Leopold Lojka hadn't accidentally taken a wrong turn, Archduke Franz Ferdinand would have lived to reign another day and likely died as an historical footnote. But would World War One have been averted? I think not. The causes of World War One were far great and deeper than the assassination of the Archduke, and Princip's bullet was just one of ten thousand sparks that could have—would have—set Europe aflame.
It seems to me that there were two great, deep things at work here, monsters that crept into our nation's foundations and rotted them out worse than we knew, whose strength and cruelty we didn't realize until too late.
The first is harder to spot than the second. Did you notice that nobody actually cheated, exactly? Biden was not caught stuffing ballot boxes. Trump did not shut down the Postal Service to block absentee voting. Had either of them done so, it would have cost them too many supporters, and they would have lost this struggle. Instead, everyone, on both sides, simply continued what they'd all done, in increasingly destructive ways, for forty years: they took the Constitution, or a statute, or a well-known precedent... and pushed the envelope. Reinterpreted it. Bypassed it. Bent it, even. This was simply the final culmination of the long-running bipartisan project to destroy the glue that bound American political institutions together, and which bound voters to those institutions.
Their maneuvers were always justifiable—but always worked toward partisan advantage. Republican judges returned sober, well-reasoned opinions that happened to always support Republican outcomes; Democratic judges returned sober, well-reasoned opinions that happened to always help the Democrats. Legislators and executives, at every level, did the same. Indeed, other than the initial alleged Russian interference, there were no great stresses on our system, like plague or invasion. We pretty much did this to ourselves. The gentlest of pressure from our adversaries led us into a spiral of escalation that we couldn't exit without one side surrendering—and surrender was the one outcome neither side could accept.
This wasn't surprising, because this is how politics already worked. You remember how the Republican Senate played hardball on Merrick Garland, and how President Obama played hardball on DACA and DOMA and the ACA, and how Republicans played hardball on the debt ceiling and the filibuster in 2009-2010, and how Democrats played hardball on Miguel Estrada in 2003... and on and on, back and back, down a mountain of mutual grievances, into the misty depths of a time before we hated each other.
Which brings us to the second and more obvious monster in our politics: we hate each other. We have for some time now. There's plenty of statistics describing the precise breadth and depth of our hatred, but you don't need a study to know that Red and Blue America loathe each other any more than you need to a study to tell you humans breathe air, or that social media is bad for you.
This hatred blinded us. Nearly everyone, in and out of politics, was convinced that "their guy" was the legitimate President of the United States. Most were happy to play hardball if it meant protecting "their" President. When it came down to it, plenty of people were willing, if called upon, to do violence in defense of "their" President, too. Many of them were people who had never dreamed of taking up arms, and who did so only as a "last resort" to stop "the coup." And there were more than enough of them to blow up the country.
If you yourself have finished this narrative and think that there is, in fact, a single, clear, legitimate President of the United States (and, by extension, a clear usurper), if you think this without even actually reading the Pierson-Ratcliffe report or the Supreme Court opinions in Biden v. Pennsylvania, then you may well be an illustration of the problem—a soldier-in-waiting for one side or the other. Someone who maybe, deep down, just a little, wants this to happen, so you can finally rid the nation of the Bad Guys forever.
We failed to slay these monsters. I understand why we failed: they're tough beasts to fell. But, as long as they lived, sooner or later, the horseshoe was always going to find its nail.
In November 2020, it did. And the war came.
"We are divorced because we have hated each other so."
~Mary Chesnut (March 1861)
EDITOR'S EPILOGUE: Epistemic status: fiction.
I started writing this nearly a year ago, back when Liz Warren was winning the Democratic primary. The downside of it taking so long to finish is that I had to keep going back and updating things, like changing all my references to "Mark Walker" to say "John Ratcliffe" instead.
The upside, though, is that a lot of things which, in 2019, I had a hard time presenting as believable possibilities are now, in 2020, not just believable but have actually happened in one form or another. Indeed, people are worrying about the possibility of civil strife today in a way that was unimaginable when I started this—and they're right to worry.
Did I miss something? Is this story unrealistic? Is there a "weird part that doesn't make any sense," as the author asked at the start? Tell me if you think there is.
This narrative describes how a basically pretty boring (but very close) presidential election leads us to destroy the country all by ourselves, with just a single little push (an alleged push, at that!) from the Russians. The covid pandemic is practically invisible in this story, because I was halfway through it before covid became big news, and I couldn't really go back and write it in. The Post Office / vote-by-mail controversy doesn't even feature here, because that's a brand-new controversy I haven't had time to research to the necessary depth. We are in the midst of a deep economic recession. We have already had prolonged riots. "President Trump bypasses the military by deploying his own police forces against political enemies" was a pretty tough sell in my outline a year ago; now you've seen it happen for yourselves in Portland.
We no longer need that push from the Russians. All the ingredients for a catastrophic legitimacy crisis like the one described in this narrative are already here.
Let's pray the horseshoe can't find that nail just yet.