David Daley

What will it take to shock people out of their routines?

The US is enjoying a nice little simulation of what life is like in a failed state, in the midst of a national crisis. The top of the government has been essentially rendered non-functional, if it ever was. Donald Trump is using the White House solely as a TV room, and has completely disengaged from the coronavirus outbreak. When he said that you wouldn't hear about COVID after November 3, he must have meant from him. Beyond raging at the "medical deep state" for announcing progress on a vaccine after the election, there's been nary a word.

Trump has always been unforgivably lazy, and that's part of why we're in the third wave of this crisis instead of the second. But the consequences are even greater right now, given the skyrocketing numbers of cases and hospitalizations across the country. You may see Trump as a moron but 72.6 million people (and counting) thought he was good enough to be president, and if the coronavirus doesn't exist for him, it doesn't exist for them either. NPR had this heartbreaking story yesterday of an ICU nurse in central Michigan who said she constantly hears regret in her patients, just before they're placed onto ventilators. "I didn't know COVID was real, and I wish I'd worn a mask," they say, struggling to breathe. That's the result of an utter lack of leadership.

That leadership is urgently needed. We had 34,000 COVID hospitalizations across the US a month ago; there are 67,000 and rising now. The system will be at capacity within a couple weeks, on that trajectory; some regions are already there. Thanksgiving is about to "pour gasoline on a fire," as one Biden task force member puts it, with more travel than at any point in the crisis. The medical profession has done exemplary work, and we have strategies and treatments we didn't have in the spring. If people can't get the medical care they need, none of that matters.

Let's put lockdowns aside for a moment, as I'm dubious that any elected official is willing to go there right now. In the spring, New York and other locations set up field hospitals and called in retired health care workers to increase capacity. Outside of mobile morgues in El Paso I don't see any evidence of that happening right now. There's no federal assets or even interest in this basic function of keeping people alive, and not much activity I can see at the state level, particularly in parts of the Midwest that are hit the hardest.

So what can stand in for an absentee government? What's left is personal responsibility, a lot to ask of a public that's adrift. Really we're on our own now. And we can actually make a difference. The public health measures are not unknowable: wear masks, avoid close congregations to the extent possible, don't eat indoors at restaurants or work out indoors at gyms. That would cover an overwhelming majority of this and slow the spread, giving the sick a chance to actually get treatment. With a vaccine in sight, it wouldn't even be an open-ended commitment.

At many moments of the crisis, personal behavior has actually led the way. Restaurant demand was collapsing before any lockdowns took hold. Mask usage has actually been decent, though obviously not good enough. People starting to hoard food again could actually be a positive sign. But the real moment when the public took the lead was during that first phase of lockdowns, where everyone actually paid heed, went inside, and engaged in a collective action, a rare moment for this country.

That came right after the NBA reacted to one positive test from a player by shutting down the season. Tom Hanks' positive test happened around the same time. That was the news needed to get everyone to take things seriously. What is the antecedent to that now? What is going to shock people away from their normal routines?

I mean, it's probably football, our secular religion in America. There is active talk now about the college football playoff being delayed. The majority of the SEC schedule was postponed for this weekend, along with several other games. With quarantine and contact tracing protocols being what they are, it's entirely possible there aren't enough bodies available to finish the season, and at some point you'd expect players to just start opting out. They're not being paid to risk their health, after all.

In the NFL, at least one practice facility is closed, but there's so much damn money involved that you'd have to see a league-wide outbreak before the season is derailed. The college game, though, is probably different. And that's as important, if not more so, to a significant portion of the population.

It's beyond sad that I'm sitting here strategizing over whether we can see enough leadership—or really resignation—among athletic directors and football coaches, because there isn't any in Washington or state houses. But the prospect of 100,000 more people dying before Inauguration Day has me grasping at straws. There's a vast leadership desert in America right now, and I'm looking for an oasis.

Days Without a Bailout Oversight Chair

231.

Today I Learned

  • Elon Musk has it and is blaming the tests, which are antigen tests and admittedly not that accurate. (Reuters)
  • The oldest member of Congress has it. (Washington Post)
  • These billionaire Trump donors have it. (The Guardian)
  • Rand Paul, a doctor (OK an eye doctor), thinks all those people above are lucky duckies because they'll have immunity. (Talking Points Memo)
  • The liberal wonk consensus appears to be that real fiscal relief will only happen by giving Republicans more tax cuts in exchange. (Vox)
  • Avoiding canvassing seemed like the right public health move but may have been wrong for winning the election, Democrats admit. (HuffPost)
  • The mutation of the virus in minks won't be a problem for the vaccine, Dr. Fauci asserts. (CNBC)
  • Thoughts of rage about the third wave. (ProPublica)

What if Trump won't go? Why our system is ill-prepared a worst-case election scenario

Lawrence Douglas saw it all coming.

Long before the pandemic, before mail-in voting became a crucial part of the 2020 election, before the Postal Service was deliberately slowed, before hundreds of election-related cases were filed with the courts, the Amherst College law professor recognized that Trump didn't seem the type to share a limo ride down Pennsylvania Avenue with his successor and take part in a peaceful transfer of power. And so he asked a simple question: What guardrails exist if the election is close and Trump refuses to go?

The answer, laid out in his punchy and essential new book "Will He Go? Trump and the Looming Election Meltdown in 2020," disturbed him. There weren't many. Our constitution, Douglas discovered, does not secure the peaceful transfer of power but rather assumes it as a given. The system was protected by politicians and parties that had internalized the norms of a democratic process.

But when norms no longer constrain a president or his party? All bets are off. The laws are a muddle. The nightmare scenarios are real. And what Douglas imagined as an intellectual exercise has become a horror show: His worst-case possibilities could actually be in play.

We talked last month about those nightmares, how little we can do to fix it, and perhaps most importantly, what Douglas will be drinking this evening. You also might want to start early.

Our system is clearly ill-prepared for the challenges of this moment. Here's a simple question: Why? How is this possible?

You're right, the constitution and our system of federal law doesn't secure the peaceful succession of power, they presuppose it. On one level you can say, "Why is that the case? Why don't they do more to actually secure it?" And I'm not sure they necessarily could. Any political system — any kind of system, even any game, it always presupposes that the principal actors are behaving in good faith, and that they've internalized the norms.

No legal system can secure itself. A legal system always needs some kind of deeper normative fabric or structure to rely on in order for it to work. And if that normative fabric starts to fray, then the system really can't protect itself. And I think that's what we've really seen very, very disturbingly, is the way in which that normative fabric has frayed.

That fraying, of course, runs deeper than Trump — but sets the table for this moment.

Yes, completely. They've been distorting and deforming those norms for a long time. Then, suddenly, you have a Trump, who just kind of smashes through them.

One might expect that there would be a price to pay for smashing norms. But that hasn't happened for Trump. What does that say about norms?

Norms are different from laws. If they're broken, you don't necessarily face legal sanctions, but you would expect to feel political sanctions. There would be some kind of political price to pay. This is one of the most shocking things about his presidency, the way in which he's been able to smash through these norms with absolute impunity. The only way he could do that is because of the cover, protection and support that he gets from his other Republican lawmakers.

And with three cheers from conservative media. What role have Fox News and others played here?

The only way that Trump could continue to get the reliable support of these Republican lawmakers is to continue to have the reliable support of the Republican base. And he would not have been able to maintain the reliable support of the Republican base without right-wing media, and his megaphones in the right-wing media, like the likes of Sean Hannity. When people talk about the hyper-partisan politics of the moment, it makes it sound as if there's a symmetry between the polarization, which is simply untrue. It's very asymmetrical. The Republicans have, really, kind of a radical party. It's not a conservative party. I think people need to appreciate that.

We have a similar nightmare scenario for November 3: That it takes days and weeks to count mail-in ballots, that Trump declares victory, everything heads into the courts, and Republicans tee up Bush v Gore-style cases in a handful of states. Then if things remain unsettled as December nears, there could be wholesale chaos with electors and state legislators, under the worst-case scenarios. Tell us what worries you most?

It's exactly that. If you just look at the way balloting is going to break down on election day itself, potentially a lot more Trump supporters will be willing to vote in person than Biden supporters. It's not unlikely that Trump could have a lead on November 3rd. The thing that I worry about is that Trump is going to try to leverage whatever lead he has on November 3 into a claim that he's been re-elected. And that, as that lead erodes in the subsequent days, as the mail-in ballots start to get counted, that he will claim that, "Yeah, exactly. This is just everything that I've said coming true. That the Democrats have corrupted these mail-in ballots, it's all fraud."

Fox News will amplify it, naturally.

Yes, Fox repeats and amplifies it. You can reliably add Russian disinformation campaigns on social media. And then you could probably add in some genuine chaos when it comes to the counting of mail-in ballots. Chaos that results from human error, and chaos that results just from the litigation teams that are going to be descending on all these swing states, in particular. I mean, one of the statistics from the recent primary season in Pennsylvania, Wisconsin and Michigan, there were around 60,000 mail-in votes that were disqualified. And that's almost the same margin by which he carries those three states in 2016.

Trump has been making these claims of voter fraud since the beginning of his presidency. He claimed, baselessly, that he would have won the popular vote except for voter fraud. He had an entire Keystone Kops commission searching for voter fraud, the Kobach/Pence commission, which finds no proof and disbands ignominiously. And you started thinking about this book as far as back as that — you noticed something in his willingness to talk about fraud that raised worrisome questions.

Exactly. I'm sure lots of other people saw this as well. But the very first piece that I wrote for The Guardian was exactly on his claim that, but for the three to five million phantom voters, he would have won the popular vote as well. People think of this as Trump being kind of extravagantly narcissistic, that everything he does has to be bigger and better than everyone else's. But imagine the politics behind that kind of claim — and imagine what kind of damage you could do if you were to trot out that argument to challenge the results.

And then you started looking into the constitutional safeguards and laws surrounding this, and you became greatly comforted and relieved that the founders had thought about this in advance and had it all covered.

(Laughs.) I thought of it as a thought experiment. What would happen if he were to challenge the result, and how well is our system designed to troubleshoot a scenario like that? And of course the answer that I learned was, "Oh, it's not well-designed at all."

Was that a holy shit moment? Were you surprised by how little protections you found?

I think that's fair to say. "Well, wait a sec, there's got to be more here than this."

Perhaps the key piece of legislation is the Electoral Count Act of 1887. Tell us about that.

Congress passed this in the wake of the disastrous electoral dispute of 1876. It's meant to guide Congress in dealing with any kind of future electoral dispute that lands in its lap.

I would say the best way to describe it — besides that it's impenetrable in its language, it's impossible to make sense of the words on the page — is that to the extent that it supplies any kind of advice, it says the best way for Congress to deal with an electoral dispute is to make sure it never lands in Congress's lap in the first place. "States, you figure it out yourself, and we'll just give you a date by which you need to figure things out." That's the most we can say for the ECA, because when it starts coming down to its more specific provisions, they're kind of gibberish. They lend themselves to so many conflicting interpretations that they provide very little guidance of how to get out of this kind of problem.

And this is the set of laws that we'll be counting on, that the courts and Congress will be looking to, to guide them through chaos?

Yes.

Nonsensical gibberish.

Right. Precisely. That's our great statutory savior.

The laws governing states and state legislatures are also unclear. I read an interview with one of the pre-eminent election law experts recently, and someone asked him, well, say state legislatures attempt to name electors. Would that be subject to veto by the governor? And he threw his hands in the air, and said, "I've been studying this for decades. I don't know. Nobody really knows."

Yes.

So what do we know? Walk us through what could happen, say, if Pennsylvania's count stretches past a week, courts get involved, the state legislature gets restless, Fox News goes 24/7 on voter fraud in Philadelphia. The legislature says, "We're going to name electors." And the Democratic secretary of state and governor say, "No, it's pretty clear that the popular vote went to Biden." You could have two different slates of electors looking to be seated.

That's right. If the state count gets slowed down as a result of human error, litigation, a fresh breakout of COVID — there are all sorts of ways that could really kind of slow down the count in states — then it could start pushing against the so-called safe harbor date of December 8, which is when, basically, the Electoral Count Act tells states, "Please figure out who has carried your state by then." If it looks like the margins are pretty narrow and the count is caught up in delays and confusion, yes, you can have conflicting electoral certificates submitted to Congress — and that's a world of hurt.

Then Congress needs to sort it out?

The new Congress that is inaugurated on January 3. If that remains divided, then it's just stalemate. There is hope. I mean, if that happened and the Senate was captured by Democrats, it would save us from that particular calamity. But the other thing we also bear in mind is, the same kind of confusion that could envelop the count of a presidential vote could also involve the count of all these down-ballot races.

What's the best case scenario to hope for if we want to avoid this? A big win that takes all the wind out of the "fraud" sales?

I think so. The best thing is to hand Trump a really decisive defeat, and that decisive defeat, obviously can't simply be in the popular vote. It has to be in the Electoral College and it has to be in the swing states as well. And the other thing is that the contours of that defeat need to be pretty clear, pretty early on. It's unlikely that we would know that on November 3, but it would be very helpful if we got the sense that Trump was heading towards a major defeat pretty quickly thereafter.

Would a big repudiation at the polls help create a Republican party that's less willing to ride the system off the rails?

I hope so. Maybe it would be a real gut check to the Republican party and show them that Trumpian politics has been very powerfully repudiated and they need to change. Hopefully it would encourage new Republican leaders to come to the fore who don't share contempt for democracy.

If this election is simply a close call, and we all breathe a sigh of relief, is there a way to strengthen these procedures so it can't happen next time?

I'm not sure about that. I don't think we would be worried about this election nearly as much as we are, if it weren't for the electoral college. I mean, the electoral college is tailor-made for someone who wants to engage in this kind of constitutional brinkmanship, because all you do is try to contest the vote in a handful of swing states. It's very hard to kind of cast doubts on — even though Trump tried, of course — to cast doubt on losing by 5 million votes. It's not going to be that hard to cast doubt if the election turns on 10,000 votes in Pennsylvania. And so if we just had a national public vote, I think that would be a very healthy step in the right direction. Not easy to achieve, but it would be nice.

What are you drinking on election night?

Pretty potent stuff.

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