An Electoral Conspiracy?
In a previous article, I talked about the relative likelihood of Supreme Court intervention in the 2024 general election. That is all still true and real, and I recommend reading that article first, but I want to talk about another possibility: how Congress, with a little help from the Supreme Court, can throw this election too.
The hints to an electoral plot come from Trump at his recent Madison Square Garden rally. This was at the same rally that drew comparisons, especially by major bourgeois media outlets, to the infamous Nazi German American Bund Rally in 1939. The same rally where a Trump-invited speaker infamously stated Puerto Rico was a floating island of garbage, among a bevy of other outright racist remarks.1 At the rally, Trump hinted at a scheme, stating:
I think with our little secret we are gonna do really well with the House, our little secret is having a big impact, he and I have a little secret, we will tell you what it is when the race is over.2
The “he” in Trump’s statement is the Speaker of the House of Representatives, the Conservative pro-Trump Mike Johnson. Johnson later clarified the existence of this secret: “By definition, a secret is not to be shared—and I don’t intend to share this one.”3
We can feasibly put together a rough outline of any likely electoral scheme as there is only a certain number of ways the electoral process can be subverted, not counting something completely out of left field. Considering this scheme involves the Speaker of the House of Representatives, we should focus our attention on what exactly the Speaker has the power to do regarding the election.
The first possibility is to create a “contested election.” This is where if there is a situation like a tie in the Electoral College, or in a situation where no candidate gets a majority of 270 electoral votes, then the House gets to decide who the winner is, with each state delegation to the House getting one vote. The conservatives in the House have 26 of the 50 House delegations, a majority, and would likely exercise great voting discipline to give Trump the presidency.4 But getting to a contested election is relatively difficult — is there another, easier way?
The second possibility is to win the Electoral College by not even winning 270 electoral votes, but simply more than the opposition. A loose reading of the 12th amendment of the US Constitution could be interpreted to state that a candidate does not need to win half of all the electors plus one, as it has nearly always been interpreted, but simply a majority of the certified electors.5
The idea is to stall the certification of slates of electors to Congress until after the certification deadline. If these states fail to certify their slates of electors to Congress then they will not be counted towards the majority, and the total number of electors one must win decreases. The slates of electors are supposed to be certified by December 11th, and the electors are then supposed to vote and submit their results by December 25th.6
Obviously, the way to enact such a scheme would be to get republican-dominated states to stall the certification of their electors to Congress, probably by claiming there was some election fraud and holding the process hostage in the justice system via a slew of lawsuits. There are many states with Republican-led governors or legislatures that could do such a thing.
The lawyer Elie Mystal explains:
There are currently 27 states with Republican state legislatures, including Arizona, Florida, Georgia, North Carolina, and Wisconsin. There are currently 26 Republican governors running states like Florida, Georgia, Nevada, and Virginia. If some of these people are able to delay certification past the deadline, the “whole number of Electors appointed” would be diminished, lowering the number of electors Trump would need to hold a majority.7
He continues:
If enough states refuse to certify the results of the election and submit a slate of electors—with the Supreme Court’s blessing—the math is not actually hard for Trump. Let’s say Vice President Kamala Harris wins the bare majority of Electoral College votes necessary, 270, but the Republican legislature in Wisconsin refuses to submit the state’s 10 electors by the deadline. In this scenario, the new total number of electors becomes 528, not 538—and Trump needs only 264 electoral votes to “win.” If you take Wisconsin and Nevada’s six electors out of the mix, Trump needs only 262 electoral votes to “win.” He’ll likely achieve those numbers without having to win one of the “blue wall” states.
It’s possible to play with the numbers until you find a “tie” scenario at which point the contingent election goes to the House of Representatives, but the far more likely situation is that Trump decreases the overall number of electoral votes available until he can claim a majority of the ones remaining.8
While the Electoral Count Reform and Presidential Transition Improvement Act of 2022 attempted to simplify and codify the electoral process, there are still a couple issues. Firstly, it is legislation that has been untested by the Supreme Court and can be interpreted or dismissed by them however they please as conservatives have a majority of the justices, 6-3. The likelihood of the Supreme Court intervening to help Trump, and likely only Trump, was discussed in the New Worker here.
Secondly, the Act stipulates that election arbitration gets fast-tracked to Federal courts, which on paper sounds good until you remember that this necessarily means any election lawsuit can eventually end up in front of the Supreme Court, guaranteeing a pro-Trump verdict. Notably, the Supreme Court does not even have to rule in Trump’s favor on any of these suits. Let us say a state holds up its certification in court that would give Trump a majority of the electors should their votes not be certified. The Supreme Court can delay this certification by not ruling on the case, allowing the scheme to go along, and giving Trump a victory. By taking a hands-off approach no legal decision need take place to “legally” give Trump the victory.
Our analysis has mainly focused on what Trump-aligned forces will do, and this is because legally the Supreme Court, which has the final say in all legal matters in this country, is dominated by six conservative justices who are likely to exercise great discipline to get their ideological ally elected, just like in the presidential election of 2000. There’s no conceivable reason why six conservative justices would intervene to steal an election for the Democrat Kamala Harris, and while it is a little more likely that two of the six conservative justices might side with the three liberal justices on an electoral lawsuit, it is not at all probable as we know Supreme Court justices are willing to exercise great discipline when the chips are down. The legal system or the House of Representatives intervening to steal the election for Kamala Harris is simply not going to happen.
The Democrats could muster the best legal arguments, the most stringent and passionate appeals to tradition, and fight every lawsuit in the courts, but so long as it is either a contingent election, or it’s in the hands of the Supreme Court, then Trump can steal this election and there is literally nothing anyone could do about it. If the Supreme Court rubber-stamps it, it is law, and that is final.
Assuming Trump does not just win the election outright with no legal schemes required, which is absolutely possible if not likely, if Trump succeeds at stealing the election then what is going to be the response from the Democratic party? They have already rolled over once and allowed Supreme Court intervention in 2000, and while the election of 2020 managed to go their way because the Supreme Court did not rubber-stamp Trump’s scheme, there is no guarantee they will not this time.
So, what would be next for the Democrats? They have rhetorically backed themselves in a corner, harping that elections can never be stolen, that they are always fair, and we should always respect bourgeois institutions. While this rhetoric is understandable given their interpretation of the events of January 6th, 2021, who can seriously say that elections have always been free, fair, and just in this country without making a fool of themselves? We have a recent, shining example of a stolen election, the presidential election of 2000, and we all know that voting in this country is subjected to extreme anti-working-class restrictions like voter ID laws that disenfranchise poor people, strict voter registration criteria and deadlines, constant voter roll purges, having to work on election day, and the positively aristocratic Electoral College system. This is to say nothing of the media environment, where billionaires control newspapers and decide what does and does not get published, as seen when the billionaire Jeff Bezos intervened to stop The Washington Post, which he owns, from endorsing the Democrat Kamala Harris.9
If the election is stolen, do we expect a Democratic countercoup? A liberal “January 6th” moment? Considering their inane rhetoric extolling the sanctity of bourgeois institutions it certainly wouldn’t be in character.
The truth is that there has never been a free and fair election in this country where the working class has been able to fully express their will, and there never will be such an election under a bourgeois government. This does not mean we entirely disregard the electoral struggle, the dear Lenin argued exactly against that, but we need to understand the real, objective, and concrete structure and limitations of the bourgeois republic and its institutions in order to develop an effective electoral strategy for our future communist party. While what was extolled here in this article is all hypothetical, it is important that every worker knows that these schemes are possible, if not likely. It is important that all working people understand on a deep level that bourgeois institutions are not for them at all, but the ruling capitalist class. Those who want truly free and fair elections without capitalist interference must support the establishment of Socialism-Communism, and the Communist Workers Platform.10 One day we will all be able to cast ballots without the domination of the capitalist class, but we must all fight for Socialism-Communism here on Earth to make that day a reality. Then, elections will truly be free, and we will be too.
Footnotes
[1] Soon Rin Kim, Lalee Ibssa, Kelsey Walsh, and Sarah Beth Hensley, “Racist, crude comments at Trump's Madison Square Garden rally overshadow his 'closing argument',” ABC News, October 28th, 2024, https://abcnews.go.com/Politics/racist-crude-comments-trumps-madison-square-garden-rally/story?id=115213429.
[2] Elie Mystal, “That ‘Little Secret’ Between Trump and Johnson? Here’s What It Could Mean,” The Nation, October 30th, 2024, https://www.thenation.com/article/politics/little-secret-trump-johnson-election/.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] David Folkenflik, “Over 200,000 subscribers flee 'Washington Post' after Bezos blocks Harris endorsement,” NPR, October 29th, 2024, https://www.npr.org/2024/10/28/nx-s1-5168416/washington-post-bezos-endorsement-president-cancellations-resignations.
[10] CWPUSA Member, “Expect Supreme Court Intervention This Election,” New Worker, October 30th, 2024, https://newworker.us/domestic/expect-supreme-court-intervention-this-election/.