5 November: Where we are

Nov 6, 2020

This is either the calm before the storm or the beginning of the end.

Let’s start with the latter, and more hopeful: The “red mirage” is fading, not quickly enough, given the choice by states not to update their procedures for counting votes. If it resolves soon, with Biden winning Nevada and Arizona, plus one between Pennsylvania and Georgia, it will be over.

Yet there’s a haunting that some of us have been talking about for months and that just won’t go away: The threat that state legislatures will reject the vote of the people, and select their own slate of electors. I wrote about this in The Atlantic last month. My fears were confirmed Thursday when Mark Levin first tweeted this:

That was then retweeted by Donald Trump, Jr. And then late Thursday, Lindsay Graham tried to climb on the bandwagon.

I’ve got an essay that will be published Friday that will explain just why the Supreme Court’s decision in Chiafalo v. Washington means that Mark Levin is wrong. Stay tuned for more …

The other haunting is the question of “faithless electors.” The New York Post is raising the idea that faithless electors might swing the result for Trump — especially if Biden’s victories only get him to 270. But here too, Chiafalo seems clear enough: Whatever power the electors had originally, the Supreme Court has declared (9–0) that democracy has overrun it. Whatever other power an elector has, he or she no longer has any power to act against the vote of the people. “Here,” as Justice Kagan wrote at the end of her opinion, “We the people rule.”

We’ll see.