The art of the steal: How Trump and Republicans can steal the election from Harris — and America

Constitutional law interpretations... Chaos in the states... Congress stealing an election.

Note: Helluva week here. Basically a story every day which feels about right. But this madness is going to continue — unless Trump wins in a landslide, which presents an entirely different set of issues. So, if you want to support my work you can choose a paid subscription for as little as $5 a month or contribute to the Doom Coffee Fund. I’m probably going to need some caffeine! Actually, we’re all going to need it. But also drink water. Water is good. And try to get some sleep, too. Now, onto the news…

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As U.S. Rep. Scott Perry of Pennsylvania began to speak through a medical mask on January 6, 2021, his colleagues on the floor of the House rose behind him in support.  

“Mr. President, sadly but resolutely I object to the electoral votes of my beloved Commonwealth of Pennsylvania on the grounds of multiple constitutional infractions that they were not, under all of the known circumstances, regularly given,” Perry said to Vice President Mike Pence, acting in his role as president of the Senate that day. “And on this occasion I have a written objection signed by a senator and 80 members of the House of Representatives.”

The objection was signed by Perry and Sen. Josh Hawley of Missouri, making it official, Pence noted.

Hawley and Perry’s objection that Pennsylvania’s electoral votes were not “regularly given” — a previously-obscure phrase from the Electoral Count Act of 1887 — precluded a tumultuous and violent day at the Capitol that included an attempted insurrection and, ultimately, the certification of Joe Biden as president. Along with other efforts by congressional Republicans, Perry and Hawley’s “regularly given” objection was an attempt to overturn the 2020 election in favor of Donald Trump. 

These efforts culminated with Pence refusing to cave to Trump’s pressure to overturn the election and certifying Biden’s win. Four years later, those working to re-elect Trump won’t have a single event or a lone target — like Pence’s certification of results — for overturning 2024’s election results. Instead, Trump’s supporters in public office and private life are at work exploring myriad scenarios that could put Trump back in the White House — regardless of how Americans voted. 

These scenarios are the subject of a story I have out today at Rolling Stone. It’s the culmination of much work over the last few months, speaking with election law experts, election officials, the Harris campaign, Rep. Jamie Raskin and many others. I hope you read it. The short version is this: pro-Trump forces from the local level at county election boards all the way up to the halls of Congress on Jan. 6, 2025 can steal this thing. These forces are already hard at work calling the election into question by amplifying bogus fraud claims and fear of noncitizen voting. They will likely use these claims to carry out what can perhaps best be described as a constitutional coup. 

Action from this week to catch up on

• Musk’s misinformation machine ramps up with fake video of Haitian migrant voting in Georgia

• Pennsylvania is teeming with election denial officials

• How Election Deniers Took Over Georgia’s Election System

• My appearance on Nieuwsuur from Dutch public television

Republicans in Congress will use questionable interpretations of constitutional law to say that a win by Vice President Kamala Harris is illegitimate, and install Trump as president regardless of how Americans vote. It’s a situation really without precedent in the nation’s history. Should Harris prevail on Tuesday, what we’ll witness over the next three months is a test for the checks and balances of our system of government that the founders feared — a test in the form of an autocratic leader backed by a political party with no respect for the rules and norms of democracy, driven by a naked quest for power. 

Beginning immediately after the election and ending on Jan. 6, Republicans have several paths to undoing the will of the people. I’ve identified four that present the most plausible paths to an anti-democratic victory:

• Widespread certification refusals by county election officials - This could prevent governors from meeting the Dec. 11 deadline to file what are called “certificates of ascertainment,” the documents that confirm which candidate won in a given state and allow the Electoral College to cast their votes for president.

• Disruptions to voting or canvassing of results - Again, this could cause a missed deadline for certificates of ascertainment on Dec. 11, as well as fuel Republican claims that the election was illegitimate. 

• Disruptions to the work of the Electoral College - Through protests or attacks, presidential electors could be prevented from carrying out their task of voting for Harris. In addition, rogue state legislatures could once again try to install fake electors for Trump, or change rules dictating that the electors must vote for Trump, regardless of the outcome of the popular vote.

• Objections to certification in Congress - This is the most likely scenario. Despite the passage of the Electoral Count Reform Act (ECRA) of 2022, Congress still has multiple options to refuse to certify results. These include objections to results made under provisions of the ECRA’s predecessor, the Electoral Count Act of 1887. These objections — that results weren’t “regularly given” or “lawfully certified,” another phrase from the 1887 law — would be improper, election experts say. But if the objections are sustained, state results could be thrown out.

Both sides are reticent to discuss their plans for these events. Democrats say they don’t want to make voters feel that their votes won’t count because Republicans plan to steal the election anyway. Republicans don’t want to discuss their plans for Election Day and beyond because they don’t want to tip their hand.

But these events — barring a landslide win by Trump or a sudden act of moral conscience on the part of Republicans — almost surely will happen. And on Jan. 6, Americans will be left trying to understand the complex legal and constitutional arguments being made by elected leaders who are, in many cases, trying to understand these matters themselves. 

The bottom line is this: the entirety of the American right, from your uncle on Facebook spreading election fraud claims to House Speaker Mike Johnson who may lead efforts to overturn the election, does not believe that anyone other than Donald Trump can or should win this election. Those with power in this anti-democratic ecosystem will argue that the law — and the constitution — is on their side, but it is not. 

The system held last time — barely. The experts and officials I’ve been speaking with for the last nine months openly wonder whether the system will hold again. On the other side of this test for democracy waits an authoritarian president and political party that will be emboldened by their success in corrupting our systems and ideals to bend to their will. Even some of the Americans who support them won’t like what they see on the other side of that divide. Authoritarianism demands absolute loyalty. Avoiding the tyranny of an all-powerful leader is the exact reason this country was formed — it’s the antithesis of liberty. We seek it at our peril. 

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P.S. The photo on this post is from a source in Luzerne County, Penna., where someone put these signs up near a Democratic party office.