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10 November: Where we are: Birtherism, v2.0

Three days ago, I retired this daily report. I was convinced this was settled. I am convinced now that was wrong. We need to recognize — urgently — just how dangerous what’s happening is. The other side needs to recognize—urgently— just how dangerous it would be if they succeed.

This is Birtherism all over again: Obama wasn’t President because he was born in Kenya; Biden can’t be President because he didn’t win the election. When Trump launched his birther campaign, he was politically irrelevant. As he launches his birther campaign against Biden, he is the most powerful political actor in America. His rallies and tweets and campaign—coordinated now with an Attorney General and leaders in Congress—aim at the very least to discredit the next administration. It aims as well for what is still within the realm of possibility: that Mike Pence acts on January 6 to rule Trump into the presidency.

Last week, I was optimistic that this couldn’t happen, because last week, the emerging consensus seemed to be clear, and the idea of moving against that consensus seemed literally crazy. Yet we have to remember that the same was true of birtherism. And this time, the crazy conspiracy theorist will be the President for two months and ten days at least. Lindsey Graham has declared that there will never be another Republican President if Trump concedes. McConnell is now defending Trump’s challenging of the results. And the Attorney General has launched an “investigation” into the election, leading his chief deputy for elections in the Department of Justice to resign. All of this is extraordinarily ominous. Every alarm bell for this democracy needs to be ringing.

We need now, more than ever, to collect a solid 10 Republican Senators who declare they will not support any effort to subvert this election. Mitt Romney and Ben Sasse were early on this list. Susan Collins has joined as well. Likewise with Republican governors. And likewise with leaders from business: Wall Street needs to get Washington to recognize the economic catastrophe that would result if the United States falls into a practical civil war in January. Not because Wall Street is the most important voice: but it is a voice that Republican leaders would listen to.

I’ve been writing (in the Atlantic The Mess Congress Could Make) and recording (the podcast: Another Way (to elect a president)) about how this could go south for months. MTV has repeated the story. Vice did as well. Ned Foley has a terrifying piece in the Washington Post last week. Van Jones has a new talk on TED that does the same. These accounts more need to understand. Understanding here will innoculate us against this virus.

All this many will think is just overblown. I hope the many are right. But if they are not, it will be catastrophic. This is not a time for quiet confidence. The virus of this birtherism is spreading again. Think COVID in January. Birtherism didn’t lose before, even if it didn’t remove Obama. Unchecked, it won’t lose this time either.

None of this is yet to say that they will stop the inauguration of Joe Biden. That would require Congress (or more precisely, the VP, with a Congress divided) recognizing alternative slates, the critical one from Pennsylvania. (Pennsylvania legislative leaders initially said they were not going to appoint an alternative slate. Yesterday, there was talk of a special commission to review the election.) Yet whether or not it stops the inauguration, it steals from Biden a presumptive legitimacy.

Trump supporters will say that’s exactly what happened in 2016. Many genuinely and honestly believe there is no difference. But we should remember the clear differences: This time, the putative winner didn’t lose the popular vote by 3 million, he won the popular vote by close to 5 million. This time, there is no plausible suggestion of world-class foreign interference. That time, when the recounts were done, Democratic leaders did not question the results. That time, no credible Democratic leader was suggesting a massive domestic fraud. And finally, that time, Hillary Clinton was not holding rallies to deny the legitimacy of the process or the results.

This time is not that time. This time could well be worse. It doesn’t take a Stephen King to glimpse what happens if they succeed in reversing what all now assume is the result. Seven percent of America turned out to protest the murder of George Floyd. What does America look like if legislatures vote to ignore election results, and then defeat Joe Biden’s election? (Here’s why legislatures shouldn’t be seen to have that power — anymore.) We thought 2020 was bad. 2020 will seem as nothing compared to this.

The President is entitled to a process to determine whether the results that are reported are the results that were. He is entitled to recounts where the tallies are close. He is entitled to assurance that no fraud produced this overwhelming result. To many, the very idea seems just bizarre. Even Karl Rove said it would “require a conspiracy on the scale of a James Bond movie.” Yet that doesn’t negate the President’s right to ask.

But when that process is complete, we need leaders with the courage to accept those results and to defend them. We have seen some of those leaders. We desperately need more. No one should trust Donald Trump to do the right thing here— he has everything to lose. But we can demand leaders who do the right thing — or at least inspire them. This is the moment when that demand could matter.

(And oh, by the way: Let no defender of the Electoral College EVER say again that the virtue of the College is that it produces clear results. This is the second election in 4 years in which there was a clear national result, but many questions raised by tiny differences in multiple slates. Where or not the College was stabilizing before, it is deeply destabilizing now.)

Written by

law professor, activist.

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