7 November: Where we are

So if you’ve been reading these missives, you know that where I thought we were yesterday every news organization (haven’t checked OAN) declares we are today: Biden has more than 270 electoral votes and will become the 46th President of the United States. His victory is huge — a rare majority president, one of only 3 to beat an incumbent, with a Vice President who will inspire many who deserve inspiration.

As I said yesterday, the scenario some of us have feared cannot materialize now. Georgia and Arizona are the two states with GOP governors and GOP legislatures. If they go for Biden, conceivably, those Republicans could select an alternative slate. But it wouldn’t change the result — and so they won’t do it. And even if Pennsylvania Republicans somehow succeed in changing the minds of Republican leaders in their legislature—they’ve refused to consider the idea of an alternative slate, to their credit (and it makes me very proud as a former Pennsylvanian and former chairman of the PA Teenage Republicans (don’t tell anyone!))—that slate would not be signed by the Governor, and under the ECA, couldn’t compete with the certified slate, which, as of now, looks certain to satisfy the safe harbor requirements.

All of this is not to say that this still couldn’t go sideways. My optimism hangs on four facts: first, the reality that this election was not a logistical disaster, and so there’s no credible claim that the results are unreliable; second, that the ECA gives special powers to Governors, but Trump doesn’t have enough GOP Governors in Biden states; third, that given the reaction of Republicans leaders to Biden being declared the winner, any effort by the VP to short circuit the process and force Trump into office would simply fail: every scenario hangs upon a split Congress; fourth, the Electoral Count Act is (and would be declared to be) constitutional. To borrow a line from Hamilton, “you,” Mr. Trump “don’t have the votes”—from the people, in the Electoral College, in Congress (or you won’t if it gets there), or on the Supreme Court.

Ned Foley is still anxious—or at least, he was as of yesterday. His piece in the Washington Post is important and right: assuming maximal hardball, this could still go south. But I’m no longer willing to make that assumption. There is a cultural reality that constrains. They won’t risk the Republic for this man.

This diary, therefore, takes a pause. If there are rumblings worth considering, I’ll be back.

Written by

law professor, activist.

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