The Real Constitutional Crisis

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For the record, my concerns about election night aren’t really about winning. When push comes to shove, I believe the American people (at least enough of them) will see through the lies, misinformation and cowardice of Donald Trump and this Administration and vote accordingly.

And if it turns out they don’t, if after everything we’ve witnessed enough people decide to support Republicans or sit this one out…well I guess that’s the country we deserve. It’ll mean myself and a lot of others will have to reevaluate lots of things about our futures.

* * *

My real concern is an attempt to delegitimize the results. What keeps me up at night – I literally sketched out the first draft of this post at three in the morning – is a conservative effort to claim the results are invalid and Democratic winners shouldn’t be seated.

The phrase has been overused a bit lately – for obvious reasons – but this is how a real constitutional crisis could start:

Democrats win big. The Blue Wave makes landfall and it’s incredible. Exit polls and turnout indicators give away early in the day that things are looking good for team blue. Swing districts are clearly poised to flip, and even Republican seats not on the radar are looking endangered.

Those same indicators also motivate Trump and Republicans to begin questioning the results as soon as possible. Here’s a timeline of what that could look like:

12pm: Multiple states report long polling lines and potential ballot shortages. Provisional ballots by infrequent voters are being cast at record rates.

1pm: Exit polling and media interviews point to Democratic turnout and enthusiasm that’s even better than expected, with independents seeming to break for Democrats across the board.

2pm: CNN reports signs of larger than expected turn out among millennial voters. They aren’t going to vote at the same level as Baby Boomers of course, but are likely to set a record for the 18-29 age group. The ratio of women to men voters also looks like a record.

3pm: Fox reports Trump is actively monitoring the situation, and they volunteer White House “concerns” about potential irregularities. Internet chatter on conservative sites and message boards is panicked.

4pm: Trump tweets a series of reminders for Republicans to vote before the polls close, including a not-so-subtle line to “be sure Americans are the ones casting ballots”.

5pm: With the first polls in Indiana and Kentucky closing in an hour, Trump retweets a Daily Wire article headlined “Are Illegal Immigrants Stealing The Election?”. There is no evidence for this, and when questioned about the meaning behind these retweets, Sarah Huckabee Sanders says he’s just sharing information.

6pm: Some of the polls close in Indiana and Kentucky, and the initial results look strong for Democrats Joe Donnelly and Amy McGrath, among others. Breitbart posts an article suggesting Chicago gang members voted with fake IDs in Gary, Indiana. Trump Jr. retweets these claims.

There are also isolated instances of conservatives going to polling places in liberal areas and asking to see ID from people in line. Many of them are armed.

7pm: As polls close in more states, the initial tallies in early vote totals reported are very strong for Democrats. MSNBC reminds viewers that’s normal for early voting, but it’s a relatively small number of the total votes. Still, if you’re hoping for a Blue Wave these numbers are encouraging.

Black voters are waiting in line at a Georgia polling place. The law requires the location to stay open so they can vote, but conservatives yell at them to go home. They get in the face of an elderly woman and a fight breaks out when three men defend her. Within half an hour a distorted version of the video made to look like the black men began the conflict starts making the rounds on 4chan and Twitter.

8pm: The Indiana Senate race is called for Donnelly, and vulnerable GOP incumbents Barbara Comstock and Ted Budd are early calls to lose their House seats. Stacey Abrams in Georgia opens with a big lead from early voting and is holding close to even in the same day voting reported so far.

9pm: Suburban House districts in North Carolina, Michigan, Pennsylvania, New Jersey and Illinois are called as Democratic flips. 538’s live blog begins to wonder when the networks are going to call the House for the Democrats.

Fox News is regularly repeating unverified claims about voter integrity, both from illegal voters and Chinese hacking.

9:30pm: High-profile races in conservative states are very close, including the Senate battles in Texas, Tennessee and Mississippi and governor contests in Oklahoma, Kansas and South Dakota. Steve King loses his race in western Iowa, and while it’s not likely to impact control in the House, once called it’s the second most trending contest on Twitter after Beto vs. Cruz.

Rudy Guilani and Newt Gingrich openly wonder on TV if foul play is happening.

9:45pm: ABC, Reuters and the Associated Press all call the House for Democrats. The NY Times Upshot calls the House and also has them as a favorite for the Senate.

Breitbart, Reddit and 4chan are going wild with theories of George Soros paying Mexicans who tunneled under the border to vote in Texas and Arizona, as well as Tennessee Muslims being spotted driving from one polling place after another and voting five times, wearing a different turban each place they go.

10pm: Arizona’s Senate race and three House incumbents in Texas are all called for Democrats. All the remaining major media organizations call the House flip as official, and say the Senate may come down to recounts.

Trump is interviewed over the phone on Fox, and Jeanine Pirro asks if he thinks there’s any “funny business” going on. Trump refuses to rule it out, and says a lot of people are wondering that. When asked what “we’d have to do if that’s true”, Trump says anything is on the table.

11pm: Polls close on the West Coast, and embattled but favored Republican incumbents Dana Rohrabacher and Duncan Hunter are losing in early returns.

Texas is called for Beto. Democrats also flip the Senate seat in Arizona, while Nevada, Tennessee and Mississippi all look to be headed for runoffs. Republicans do manage to flip North Dakota, but every other Democratic incumbent is winning. Clare McCaskill in Missouri is the only other red state Democrat in a tight battle.

Jon Tester’s coattails in Montana help flip the state’s sole House seat blue as well. No bodyslams are reported during the aftermath.

11:30pm: Most networks are wondering how big the Democratic House majority will be and what a Democratic Senate could mean. Meanwhile, Fox News is openly wondering how widespread fraud may be and if it makes sense to refuse to seat some of the winners.

* * *

Wednesday 10:00am: CNN is summarizing the results as they wait for Trump to speak to the press. 54 House seats and two Senate seats so far have gone from red to blue, with six in the House and three in the Senate still too close to call, though Phil Bredesen’s lead in Tennessee seems to be insurmountable. One House seat in Minnesota and the Senate race in North Dakota went the other way.

10:30am: Trump addresses the media outside the White House and immediately references the violent liberal mobs in Georgia and reports of illegal voting nationwide. When asked to provide evidence to back these claims up, he tells the assembled journalists, “That’s your job.”

Over the next few days, more and more unverified videos claiming to be proof of illegal voters are posted online. None of them provide proof of their location or timestamp. The most widely shared one has a voiceover of a threatening-sounding Hispanic man talking about MS-13.

Conservative lawyers and media personalities suggest these questions may warrant a refusal to seat the incoming Congress and other newly elected officials throughout the country. These claims are widely ridiculed and not taken seriously, until two former clerks for Supreme Court Justice Clarence Thomas argue their merits. This makes people wonder if the court may actually take the case seriously.

The Supreme Court agrees to immediately hear a case brought by citizen activists against their respective secretaries of state. All of the plaintiffs are local GOP officials in states who lost seats. At the request of the White House, all protesters are banned within one mile of the Supreme Court building to “avoid the intimidation and mob-like mentality of the Kavanaugh hearings”.

1.5 million people gather on the National Mall during the first day of the trial. The highlight in the courtroom is a request for summary judgement by the defendants, based on the argument the plaintiffs and White House have provided no evidence for their claims beyond internet videos and innuendo.

The request is denied, clearing the way for a potentially lengthy trial. The White House suggests the current Congress may be extended if the case is not resolved by the opening days of 2019.

* * *

Unlikely? Of course. But no one knows what would happen in this scenario, because it’d be completely unprecedented. There’d undoubtedly be violence as tensions runs high, and whether they’re isolated incidents or widespread is unknowable as well. Literally anything could happen from this point, from two separate Congressional groups claiming legitimacy to martial law. 

Back in 2000, even though the Bush campaign’s tactics were unseemly, Americans generally trusted the recount would end with a peaceful transition. Today we’re at a different place, where studies claim 1/3 of Americans expect a civil war. As immoral and unforgivable as voter suppression is, that can (at least in theory) be rectified through new laws. But an attempt to simply ignore results would be an escalation even from those dark efforts.

We have a President who claims “What you’re seeing and what you’re reading is not what’s happening.” He’s already expressed envy for dictators and ‘joked’ about ignoring the Constitution and staying in power more than two terms, and he knows if there’s anything coming from Mueller that would be damaging with a Democratic Congress in place.

This is what keeps me up at night. It’s both incredibly far-fetched and all too easy to envision.

 

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