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Comment by skissane | Hacker News Reader

> The American empire is a long way off collapse.

The 2020 election dispute could have turned out a lot worse than it actually did. What if Mike Pence had lost his cojones and decided to do Trump’s bidding, and then Congressional Republicans and the conservative SCOTUS majority decided to go along with it? What if blue state governors then turned around and said that the federal government has been taken over in a coup, and ordered their states to reject its authority? 2021 might have ended up rather resembling 1861.

Thankfully, in our timeline, none of that happened. But, 2024, 2028, 2032, etc, all represent opportunities for “just like 2020 but worse”. Trump is going to look for a more pliant running mate this time around, and at the moment he’s ahead in the polls. Even though, if he does win in 2024, he won’t be able to run in 2028, his attitude may well be “the election is only fair if my guy wins”

Rejecting election results risks becoming normalised, increasing the odds that future Republicans will emulate Trump in this way even long after Trump has shuffled off this mortal coil; and also that Democrats may eventually succumb to the temptation to copy this page of the Republican playbook.

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Already in 2016, there were Democrats who claimed that the election wasn't fair (and therefore wasn't valid).

To be fair, all they did was talk...

Wasn't that also a thing with the first Obama election? Before that, 2000 had Gore vs Bush and the Florida recount.

Is it escalating?

> Is it escalating?

I think so, yes.

Obama's first election didn't have much - just some non-politician named Trump shooting off his mouth. 2016 had actual politicians saying that it was illegitimate. Then came 2020, and Jan 6, and it wasn't just talk anymore. So yes, it seems to be escalating.

2000 was different. The vote was close enough in one state that that there was legitimate doubt about what the actual result was. It wasn't "illegitimate because I don't like the results" the way more recent ones have been.

> Obama's first election didn't have much - just some non-politician named Trump shooting off his mouth

Trump wasn't even particularly notable among the Obama birthers, who were quite nunerous, except retrospectively; he also wasn't not-a-politician, having actively campaigned for the Reform Party nomination for President in 2000 (the Reform Party had qualified for federal matching funds, bringing out a lot of nontraditional contenders) before abandoning the effort in February 2000, shortly after Jesse Ventura, who had convinced him the Reform Party was the right vehicle for his political ambitions, left the party. At the time of the Obama election, Trump was a politician who hadn't succeeded looking for an in with a major party core constituency, and grabbing on to the widespread birther conspiracies as a means of achieving that.

> he also wasn't not-a-politician, having actively campaigned for the Reform Party nomination for President in 2000 (the Reform Party had qualified for federal matching funds, bringing out a lot of nontraditional contenders)

In the US, if all you've (yet) done is run for a third party, failing to even win its Presidential nomination-you are really (at that point in time) more of a would-be politician than an actual politician.

I went back and looked at the 2000 election (as a Gore supporter at the time) and I think it was a step on this path.

Gore tried to lawyer his way to victory in an unseemly way: https://www.law.gmu.edu/assets/files/publications/working_pa...

After losing two automatic recounts, he insisted on hand recounts—but only in precincts that had heavily favored him in the first place. The whole point is that hand recounts find more votes than machine counts (they can read votes the machine would reject). If you only seek hand recounts in precincts where each newly readable vote is twice as likely to be a Gore vote, then you can quickly close the gap

Then the Florida Supreme Court completely lost its mind, doing stuff like allowing Gore to count vote gains so far in partial recounts in Gore-favoring states. See pp. 22-24 above the above.

The Supreme Court agreed 7-2 that the Florida recount process violated the equal protection law. Democrats invoked that President against Trump after the 2020 election. Nonetheless, they waged a campaign to delegitimize Bush and delegitimize the Supreme Court, based on a mess that arose out of Gore’s own sneaky efforts to litigate his away around a loss in Florida.

> Already in 2016, there were Democrats who claimed that the election wasn't fair (and therefore wasn't valid).

Those Dems were very few and far between. Hillary Clinton conceded the morning after the polls closed, and pretty much all Dems at least paid lip service to wishing Trump well in his new office.

> Those Dems were very few and far between. Hillary Clinton conceded the morning after the polls closed, and pretty much all Dems at least paid lip service to wishing Trump well in his new office.

According to [0]:

> Trump’s mendacity is arguably the Second Big Lie. Four years earlier, the Hillary Clinton campaign and leading Democrats refused to acknowledge the outcome of the 2016 election, by claiming Donald Trump was not a legitimate president. These actions, while certainly not as dramatic or as immediately damaging as the events leading to Jan. 6 (and today), helped bring us to our current situation.

> “He lost the election and he was put into office because the Russians interfered on his behalf,” ex-President Jimmy Carter said in 2019, continuing to deny Trump’s victory three years after the election.

> “He knows he’s an illegitimate president,” said Clinton, also three years later. She repeated this sentiment in 2020, telling The Atlantic the election “was not on the level,” and again when she called Trump’s win illegitimate. She piled on to this by saying, “You can run the best campaign, you can even become the nominee, and you can have the election stolen from you,” clearly referring to how she saw her 2016 campaign.

That's an opinion piece, but it isn't making up these quotes from Carter and Clinton (and it goes on to reference remarks in similar spirit by Jerry Lewis, Nancy Pelosi, Adam Schiff, Dianne Feinstein, Bernie Sanders, Chuck Schumer, among others.)

[0] https://www.nbcnews.com/think/opinion/trumps-denial-second-b...

That was years later, after more details of Russian interference had become public. The salient point is that Hillary conceded the election within hours after the polls closed — and Obama (the then-incumbent) didn't try to sabotage the Electoral College's vote to keep Trump from taking office.

Yes, everyone acknowledges there is a huge difference in how Clinton reacted in the immediate aftermath of her election loss, compared to how Trump behaved in the same situation.

The opinion piece I linked argues that Democrats pushing the "2016 election was stolen" narrative provided normalization and encouragement for Republicans to push a similar narrative in 2020 - even though the actions taken in response to that narrative were very different.

In turn, I think the 2020 Republican claims have been encouraging pre-emptive 2024 Democratic claims - see below examples - and if Democrats lose in 2024, they've already got these pre-planned narratives at hand to invoke

https://www.rollingstone.com/politics/politics-news/trump-pu...

https://edition.cnn.com/2022/04/27/opinions/gop-blueprint-to...

https://progressive.org/op-eds/gop-plan-steal-2024-election-...

https://www.theatlantic.com/ideas/archive/2021/07/democracy-...

I don't think that’s the only salient point. The point being made above is about escalation. If we are talking about eroding our norms, the whole course of conduct matters.

Clinton conceded, but spent years calling Trump illegitimate and spreading falsehoods about Russian interference. At one point, half of democrats believed Russia manipulated vote tallies: https://www.nbcnews.com/think/opinion/trumps-denial-second-b... (“a 2016 Economist/YouGov poll found that half of Clinton voters thought a foreign power tampered with voting results”).

So what’s the next step in the escalation after that?

The stuff about “sabotaging the electoral college’s vote” is an escalation of what Gore did in 2000–pushing the law to its limit to win the case. What’s the next step after that? If it’s okay to request partial hand recounts only in counties you won (to unfairly get more votes), because it’s technically legal, why is it impermissible to lobby the state legislator to select alternate electors? (Which is technically constitutional.)

Why shouldn’t we do it first, before you do?

> Why shouldn’t we do it first, before you do?

We?

> why is it impermissible to lobby the state legislator to select alternate electors? (Which is technically constitutional.)

Evidently you've drunk the Kool-Aid of the ... worthies who push the "independent state legislature" doctrine.

Oh, and: You don't regard Trump's sending a mob to the Capitol (he knew they were armed, the Secret Service had told him), telling them they had to "fight like hell," egging them on via Twitter, and then waiting hours to half-heartedly call them off, doesn't count as trying to sabotage the Electoral College vote count?

> Evidently you've drunk the Kool-Aid of the ... worthies who push the "independent state legislature" doctrine.

What rayiner is talking about here has nothing to do with that doctrine. I explained in another comment 2-3 months back, so I'll just link to that rather than repeat myself: https://news.ycombinator.com/item?id=37541248

Yes, correct.

> Evidently you've drunk the Kool-Aid of the ... worthies who push the "independent state legislature" doctrine.

It’s more well-founded in the constitution than some precedents near-and-dear to democrats…

But actually, I don’t think the standard for litigating elections should be whether you can come up with a colorable legal theory to support your position.[1] Thats why I cited the Gore example. Just because there’s a legal theory that supports trying to game manual recounts doesn’t mean you should do it. Because once that becomes the standard (and unfortunately it has) the other side will do it too.

[1] I don’t think you should be able to litigate elections at all. The rules should be set in stone a year ahead and not subject to challenge, and everything should be done in one day with public counting the way the Taiwanese do it.

> Oh, and: You don't regard Trump's sending a mob to the Capitol (he knew they were armed, the Secret Service had told him), telling them they had to "fight like hell," egging them on via Twitter, and then waiting hours to half-heartedly call them off, doesn't count as trying to sabotage the Electoral College vote count?

Is “fight like hell” categorically different than “get in their face” https://www.cnn.com/2018/06/25/politics/maxine-waters-trump-.... Is lighting cities on fire for months categorically different?

It’s ugly, low-brow politics, like Democrats pioneered. I’d love to ban all of it. But I’m not impressed by efforts to draw categorical distinctions between different events. Either egging on rioting and political violence is acceptable or it’s not. Democrats have apparently decided it’s acceptable.

> Just because there’s a legal theory that supports trying to game manual recounts doesn’t mean you should do it.

On that, we agree. But I've come around to the view that SCOTUS should have let the 2000 Florida recount proceed, with appropriate guardrails, instead of just shutting it down.

> Is “fight like hell” categorically different than “get in their face” .... Is lighting cities on fire for months categorically different? ... Either egging on rioting and political violence is acceptable or it’s not. Democrats have apparently decided it’s acceptable.

Your last-quoted sentence just above is nonsense; the first rhetorical question betrays black-and-white thinking; and the second rhetorical question assumes facts not in evidence. (We agree about the "Either egging on rioting ..." part.)

First of all, context matters: It's one thing for a semi-backbencher congresswoman to say "get in their face." It's another matter entirely for the outgoing POTUS to say, "fight like hell" on Vote Counting Day to an armed mob that he summoned, and then to send them off to the location of the counting, and finally to sit watching them on TV (and even encouraging them) as they storm the Capitol and cause elected representatives to flee for their lives.

Second: If you feel compelled to paint all "Democrats" with the same brush, then please don't use Maxine Waters — and sure as hell don't use sporadic acts of arson (NOT "lighting cities on fire for months") — as supposedly being representative of Dems. Otherwise, we could proclaim, "Republicans want to execute Jews who invoke Satan," or whatever TF it was that was said in the moronic video clip that was making the rounds a couple of days ago. Every large group has its outliers, and its idiots, and its dangerous idiots.

> On that, we agree. But I've come around to the view that SCOTUS should have let the 2000 Florida recount proceed, with appropriate guardrails, instead of just shutting it down.

No, the machine recount should have been the final word. It doesn’t actually matter what the votes were—from a statistical standpoint it was a tie. It’s more important that the process not seem open to manipulation (and the process happening in Florida was not something anyone could trust).

>,First of all, context matters:

No, baseline political norms must be black and white. Political parties disagree about fundamental things, like God and how to raise children. They often find each other’s values disgusting, and worry about how their kids will fare in the country the other side is creating. These people will never see eye to eye on context-laden issues. The norms must be such that you can operate within them alongside people you don’t like and don’t trust.

> It's one thing for one backbencher congresswoman to say "get in their face." It's another matter entirely for the outgoing POTUS to say, "fight like hell" on Vote Counting Day to an armed mob that he summoned and then to send them off to the location of the counting, and finally to sit watching them on TV (and even encouraging them) as they invade the Capitol and disrupt the proceedings.

It’s a difference in degree (e.g. protests to disrupt the Kavanaugh hearing) not a difference in kind. Especially when you consider something like RESISTANCE—taxpayer paid employees of the federal government basically committing mutiny against their CEO that the taxpayers duly elected.

> Second: If you feel compelled to paint all "Democrats" with the same brush, then please don't use Maxine Waters — and sure as hell don't use sporadic acts of arson (NOT "lighting cities on fire for months") — as supposedly being representative of Dems.

It wasn’t isolated acts of arson. Every storefront in my wife’s office block in DC was smashed. Courthouses were lit on fire in Portland. And the whole Democratic Party sanctioned and egged on the rioting, saying “riots are the voice of the unheard,” for months.

> It’s a difference in degree (e.g. protests to disrupt the Kavanaugh hearing) not a difference in kind.

Differences in degree can matter, sometimes hugely.

> the machine recount should have been the final word. It doesn’t actually matter what the votes were—from a statistical standpoint it was a tie. It’s more important that the process not seem open to manipulation (and the process happening in Florida was not something anyone could trust).

Hmm — very interesting thought; you might have a point there about perceived trustworthiness as opposed to actual vote count.

> an escalation of what Gore did in 2000–pushing the law to its limit to win the case

No, that escalation already happened in the 2000 election — and by the GOP: Remember the "Brooks Brothers riot" by Bush's GOP lawyers and operatives, which shut down a recount proceeding in Miami-Dade County?

https://en.wikipedia.org/wiki/Brooks_Brothers_riot

The events of 2020 were more than talk. Tears in the rain.

You would also need to turn pretty much all of the Joint Chiefs of Staff, military men with a 30+ year track record of loyalty to the nation(and not an individual).

Otherwise, feel free to occupy a few buildings in DC for a couple of days, but don't cry when you're forcibly evicted by the Army and hanged for treason.

> You would also need to turn pretty much all of the Joint Chiefs of Staff, military men with a 30+ year track record of loyalty to the nation(and not an individual).

And had Pence gone along with the electoral vote plan — or been caught in the insurrection and his replacement been amenable to that plan, what do you think the Joint Chiefs would have done about it?

A military coup overthrowing the regime installed by an autocoup? Or just supporting the autocoup because the Constitutional issues of the autocoup are outside of military competency?

What was their oath? It was to the Constitution, not to avoid rocking the boat.

Would an autocoup be against the Constitution? Absolutely.

So yes, I would expect the Joint Chiefs to support the actual election winner, by force if necessary.

> Would an autocoup be against the Constitution? Absolutely.

In normal circumstances, the military doesn't make up its own mind about what is against the constitution - they defer to SCOTUS to do that.

Suppose Pence went along with Trump's plan, and refused to count the electoral votes of certain states, and declared Trump the winner. Biden surely would have challenged Pence's act in the Supreme Court. What if the conservative majority upheld Pence and declared Trump the legitimate winner?

Does the military oppose an autocoup if the Supreme Court declares it constitutional?

> So yes, I would expect the Joint Chiefs to support the actual election winner, by force if necessary.

In practice, I think it would really depend on how the other side responded. If the SCOTUS majority had endorsed a Trump-Pence autocoup as constitutional, Biden might have announced that even though he believed the majority decision was gravely wrong, he was going to submit to it for the sake of national peace-in that scenario, the military would almost surely accept the autocoup too.

Conversely, suppose Biden had announced that he rejects the SCOTUS decision as illegitimate. This is where things get a lot messier. Would the Joint Chiefs of Staff (JCS) refuse an order by President Trump to enforce the SCOTUS decision? Well, operational command authority doesn't go through the JCS, it goes from the President through SECDEF directly to the commanders of the Unified Combatant Commands - USNORTHCOM has responsibility for the domestic US, so maybe the real question is whether the commander of USNORTHCOM would obey the President.

What if, come January 20th, there are two parallel Presidential inaugurations - one of Trump (endorsed by Congressional Republicans and the SCOTUS majority) and one of Biden (endorsed by Congressional Democrats and the SCOTUS minority) - to which President would the US military owe its allegiance? I don't think it is guaranteed that the JCS would be of one mind about that question. And even if they were - what if lower-level commanders and their units disagree? One could foresee a scenario in which some units swear allegiance to one President, others to the other, yet others refuse to swear allegiance to either and insist on remaining neutral regarding the matter.

Likely in such a scenario, some state governments would recognise one President and others the other. If military units in a state recognised the opposite President to the state government, that could create a significant risk of federal-state violence - which might give military units an incentive to adopt the position of the state in which they are based.

In a scenario in which the US military has internal disagreements over who the commander-in-chief is, US military effectiveness could collapse overnight. It could be a prime opportunity for America's enemies to attack.

In the situation we already had, it was pretty clear that Trump was full of it. You could tell that by the way things were going down in the states. You could tell by what was happening in the court cases. There was no legitimate dispute there.

Would that be enough if Pence had folded, and the Supreme Court had folded? I don't know. But I suspect that, if it was obvious - and this one was - they would have gone with the obvious winner, not the political stunt.

(Digression: I think people wrong the Supreme Court. I think we'll see it with this "presidential immunity" question. I think we're going to see a 7-2 or better ruling against immunity, and we're going to see it quickly - in January. And I think we would have seen 7-2 or better against the "alternate electors", too. Even if Pence had folded, I don't think the SC would have.)

> Would that be enough if Pence had folded, and the Supreme Court had folded? I don't know. But I suspect that, if it was obvious - and this one was - they would have gone with the obvious winner, not the political stunt.

What is the military going to do? To act on their own initiative to protect the Constitution, without a lawful order to do so from either the commander-in-chief or the Courts, would be a military coup, even if just a countercoup. And then, come noon on January 20th, if Biden accepted the hypothetical SCOTUS ruling that Trump is still President, how could the military claim Biden is commander-in-chief if he himself didn't? Conversely, if Biden refuses to accept the SCOTUS ruling, now we are in the "two Presidents, the military has to decide which one to follow" scenario, and as I said, no guarantee every unit makes the same decision.

> And I think we would have seen 7-2 or better against the "alternate electors", too. Even if Pence had folded, I don't think the SC would have

We know Roberts is keen to protect the Court's reputation and impartiality, so I expect he would have sided with the liberals. Then he only needs one other justice to go along with him for Biden to win - most likely Kavanaugh; and with Roberts and Kavanaugh siding with the liberals, Barrett and Gorsuch might also, resulting in a 7-2 ruling against Trump-Pence.

However, different scenario: suppose Trump had convinced the Republican Secretary of State of one of the swing states to ignore the state-wide vote for Biden and submit Trump's slate of electors instead. Most probably, the state supreme court would strike it down; but, supposing they upheld it, I'm not sure SCOTUS would overturn them. Roberts might find appealing the position that "it is totally a matter for the state, the federal judiciary should not interfere", and the rest of the conservative justices would likely be willing to go along with it.

> I think we'll see it with this "presidential immunity" question. I think we're going to see a 7-2 or better ruling against immunity, and we're going to see it quickly - in January

I have a different prediction: SCOTUS will sit on the question for months and avoid ruling either way. Whichever way they rule could potentially have a big impact on the 2024 election, and those who disagree with the decision may accuse them of thereby interfering with it. So they'll delay, and the closer they get to November, the more they'll feel the urge to delay it further. If they delay until the November election, and Trump wins, that might give them an excuse to declare the matter moot.

> Suppose Pence went along with Trump's plan, and refused to count the electoral votes of certain states, and declared Trump the winner. Biden surely would have challenged Pence's act in the Supreme Court. What if the conservative majority upheld Pence and declared Trump the legitimate winner?

To make this hypothetical even more fun, imagine this decision is reached using the same legal reasoning as in Roe. What could six conservatives unconstrained by the constitutional text do? I wonder what’s lurking in the penumbras of the tenth amendment?

> To make this hypothetical even more fun, imagine this decision is reached using the same legal reasoning as in Roe. What could six conservatives unconstrained by the constitutional text do? I wonder what’s lurking in the penumbras of the tenth amendment?

To go off on a bit of a tangent-what's really "conservative" about originalism? I come from Australia, and mainstream Australian constitutional law is (on the whole) rather "originalist" by American standards [0] and yet in an Australian context that "originalism" is coded as politically neutral as opposed to "conservative" or "right-wing".

Wouldn't a truly conservative jurisprudence be something more like the natural law theorist who believes that the Constitution should be read so as to support and further adherence to natural law (as the natural law theorist understands it to be)?

Or, getting closer to your particular hypothetical, which is more conservative - originalism or "right-wing living constitutionalism"? [1]

[0] https://static1.squarespace.com/static/596ef6aec534a5c54429e...

[1] https://lawliberty.org/adrian-vermeule-unwitting-new-origina...

I think you are correct. Originalism gets coded conservative in the US because of the historical circumstances of our federal constitution, and the difficulty of amending it. But right wing living constitutionalism would be more conservative.

(By the way, McGinnis was my wife’s con law professor. I remember getting into an argument with him about the singularity in the northwestern law atrium.)

> Originalism gets coded conservative in the US because of the historical circumstances of our federal constitution, and the difficulty of amending it. But right wing living constitutionalism would be more conservative.

Does "the historical circumstances of our federal constitution, and the difficulty of amending it" really explain it? Australia also has a federal system, and Australia's federal constitution is also notoriously difficult to amend.

I suspect the biggest factor is actually the Bill of Rights and the 14th Amendment-once courts get used to the power to strike down legislation on the grounds of constitutionally protected rights, judges begin to feel the temptation to interpret those rights in such a way as to fulfil their own policy preferences; once those so tempted get their way, inevitable debate ensues about the propriety of their having done so.

By contrast, Australia's constitution is rather light on protections of individual rights, which limits the ability of Australian judges to feel the same temptation-one feels much more secure in striking down a law as violating the 1st Amendment, than striking down a law as violating the "implied right of political communication" (Australia's equivalent-which, as the name suggests, is not explicitly in the text, only having been read into it by the Courts, and only extends to "political" matters).

So, I think that explains how originalism became much more politically coded in the US than in Australia. However, I think the fact that it got coded as "right-wing" rather than "left-wing" may be an accident of historical circumstance. Hypothetically, suppose the Lochner era didn't end in 1937, and for decades thereafter SCOTUS continued to strike down labour regulations as violating the constitutional right to due process - one could imagine in such a scenario how originalism might become appealing to many people on the political left, whereas those on the political right might have been comparatively disinterested in it. In such an alternative timeline, "originalism" might have ended up being coded the opposite way.

Great point, especially about Lochner.

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