tthe greatest risk What our democracy faces in this election is whether the votes cast will even matter. Any number of scenarios could play out. Ballots could be (and have already been) burned, or courts could intervene to nullify the votes. But the possibility we should fear most is the one we still have a chance to avoid: the US Congress overturning the election.

Donald Trump in 2020 and early 2021 tried to use Congress to do just this, but he also tried so many other things that remembering the details is difficult. The details, however, are important. Trump’s desperation after losing the election led him to push to hold out votes everywhere he could: intimidating state legislatures, local election boards, state courts, federal courts and, ultimately, Congress. of the United States on January 6. It all failed spectacularly, but that was amateurish. effort, and one that would have required near-perfect execution to succeed. Joe Biden had obtained 306 electoral votes to Trump’s 232, meaning Trump would have had to overturn the results in several states to become president.

This time, the election results could be closer. A narrow margin would allow Trump to play in the same forums as last time, and now with people who have spent years developing the art of theft. Even if Trump loses every court case, every attempt to persuade a state governor or state legislature to throw out the popular vote, and every maneuver to try to pressure state and local officials, he can still use Congress as a plan. back.

Tyler Austin Harper: Of course black men are leaning toward Trump

This is, I suspect, Trump’s “big secret” mentioned this week, with a smile, to House Speaker Mike Johnson. It’s a secret only because Trump wants to keep it in his back pocket, but it may be pretty similar to what he tried last time. Under laws passed by Congress, including the Electoral Count Act and the Electoral Count Reform Act of 2022, here is what is supposed to happen:

The Congressional Reform Act of 2022 was intended to reduce opportunities for mischief, but even so, mischief may still arise. For example, what does “legally certified” mean? If Trump claims that undocumented immigrants voted in a state, does that mean the state’s vote was not “legally certified”? What about claims that absentee ballots were counted incorrectly? Or that the ballots arrived late?

The answer to all of them is a resounding no. Legally certified It has long had a much more precise and technical meaning about the procedure: simply whether the state’s governor has certified the vote. That narrowness has led some to say there is nothing to fear, especially as Congress has tightened the rules of the 2022 law and made it more difficult for Congress to guess the election results. I very much hope so. He ought be right. He is good. But we live in a world where the entire enterprise and meaning of the law is questioned, and where politicians stretch laws beyond their limit. James Madison warned us about this in The federalist newspaperscalling the law a mere “parchment barrier.” This time, the parchment may not hold.

Here’s how the nightmare scenario could play out. Let’s imagine that the elections put Kamala Harris in the lead, with 277 votes compared to Trump’s 261. Let’s further imagine that part of that clue comes from Pennsylvania. And then let’s imagine that Pennsylvania decides to count the mail-in votes that are missing required date handwritten on envelope. Trump then challenges that practice, claiming that the Pennsylvania legislature has established rules prohibiting counting those votes. It passes through the Pennsylvania courts until it reaches the Pennsylvania Supreme Court, which rejects its challenge and allows the votes to be counted. Trump then goes to the US Supreme Court, which also rejects his challenge.

While that should be the end of the madness, it may not be. On January 6, one-fifth of the House and one-fifth of the Senate can argue that the Pennsylvania Supreme Court acted improperly in counting these votes, in defiance of state law. They can claim that they have the right to interpret the law independently and that Pennsylvania has acted illegally. The good news here is that in 2022 Congress excluded that independent path of congressional determination and said that judicial decisions are binding on Congress when it acts on January 6. But there is room for biased arguments about what Congress actually legislated, and some (including Sen. Ted Cruz) have already said they believe the 2022 law is unconstitutional. So, despite strong efforts by Congress in this regard in 2022, an unprincipled House and Senate could attempt to assert these powers. The assertion of such powers would be false, but a debate would then ensue on the floor, and if a bare majority of the House and Senate support the objection (however specious) Pennsylvania’s 19 electoral votes would be nullified, leaving 258 electoral votes for Harris and 260 for Trump. Then Trump would be declared president.

Such a decision could and should be challenged in court and all the way to the United States Supreme Court, where the challenge should win. Congress would be challenging the parts of the 2022 law that strictly restrict the types of objections, as well as the provisions of the law that make judicial determinations conclusive to Congress. The question is, if Congress acts illegally, what will the Supreme Court do about it? Some point to the Court’s recent decision to allow Virginia to remove 1,600 people from the voter rolls as evidence of its politicization, but defenders of the Court can point to the fact that it stayed out of the mischief in 2020, with the hope that it will be so. act responsibly again in this round. The situations, however, are different. The 2020 request was by the mischief makers, asking that the Court intervene affirmatively on Trump’s behalf, something the Court was apparently reluctant to do. This time, non-intervention favors Trump. The Court can say it is acting neutrally by not hearing the case and, in doing so, effectively handing the presidency to Trump in defiance of the will of the people.

Read: The Democratic theory of winning with less

The Supreme Court, of course, is fully capable of realizing the difference between affirmatively intervening in 2020 (where it would be asked to facilitate Trump’s theft of the election) and 2024 (where it would be asked to prevent such a thing). . The decision to stand by in the face of Congressional anarchy should be unthinkable. And let us hope that this is the case (remember the Court last year in Moore vs. Harper rejected, by 6 votes to 3, a theory of the Republican Party that would have given it an immense advantage in the federal elections). But, just in case, there is one important thing to do to prevent this nightmare from unfolding: vote.

If, as a result of the November 5 vote, Harris claims a decisive victory in the Electoral College, then there is little to fear, no matter how much Trump tries to fight it. And even if the Electoral College is close, remember that Americans also vote for the House and Senate on November 5. And the new House and Senate, not the existing ones, will make all of the decisions described above on January 6, 2025. If Democrats control the House or the Senate, this divided government will prevent the nightmare scenario from becoming a reality. And even if Republicans control both chambers in 2025, electing people who respect the language and purpose of the Electoral Count Reform Act of 2022 (which, again, was written to avoid this scenario) will put an end to the madness.

So when you vote, vote for candidates who guarantee that the will of the people will govern. James Madison in “Federalist No. 55” reminds us that “the degree of depravity of mankind…requires a certain degree of…distrust,” but “there are other qualities in human nature which justify a certain portion of esteem and trust.” Republican government, Madison continued, depends on the latter. Let us pray that those qualities will lead Americans to go to the polls on Tuesday and, once there, vote to protect our democracy.