Can Trump Steal the Election by Running Out the Clock?

by Matt Muchowski

I've been working with my union, the American Federation of Government Employees, in conjunction with the AFL-CIO’s Get Out the Vote program in WI and MI.  We’ve known, that as long as every vote was counted, and as long as we prevented the GOP playbook of voter suppression, that we could win those states by highlighting Trump’s failed record for the economy of working families.

Trump’s victory in the rust-belt ‘blue wall’ states of MI, PA, and WI are what give him victory in 2016.  It was a victory that benefitted from decades of companies outsourcing jobs from the high union density states, Republicans passing so-called right-to-work laws that undermined unions finances, and unions own rhetoric focused on ‘buy American’ campaigns over a focus on organizing workers worldwide.

Unions have spent much of the last four years documenting how Trump has failed working families - Trump’s anti-union executive orders, tax cuts that benefited the rich and hurt workers, the continuing decline in manufacturing in the midwest.  On every issue Joe Biden offered policy and history of supporting unions and manufacturing.

Unions are ecstatic on Biden’s enormous popular vote mandate.  We're also very happy about Biden's victory's in Michigan and Wisconsin, and are optimistic about the remaining states counting ballots.  

However, we are still concerned that Trump could use legal maneuvering to win the election.  The union attorneys, political staff, and organizers that I work with are following even the most frivolous of Trump’s election lawsuits closely.

While I watched anchors on CNN mock some of these lawsuits - pointing out that a dispute over 53 ballots in Georgia is not going to change a vote difference that will be in the thousands or tens of thousands -- the merit’s of these cases are not the point for the Trump campaign -- delaying the certification of results is.

While state and federal law would prevent state legislature from selecting their own Presidential electors by fiat, as U.S. Code 6 requires the executive of the state to sign for electors.  Which would limit the Republican MI, PA, or WI statehouses from going around the Democratic Governors in those states.

In Wisconsin, state law backs this up, "For presidential electors, the [election] commission shall prepare a certificate showing the determination of the results of the canvass and the names of the persons elected, and the governor shall sign, affix the great seal of the state, and transmit the certificate by registered mail to the U.S. administrator of general services."

However, it is less clear what happens if Governor’s are unable to  sign results and certify the Presidential electors by December 8.

Under Federal Law, states are required to certify their Presidential electors by December 8, and the electors vote 6 days later.  If Trump’s lawsuits lead to judges preventing vote counts, or prevent state’s Election Commissions and Secretary’s of State from certifying results in time to meet the December 8 deadline -- then GOP state legislatures in MI, PA, and WI have two options.

1.) Appoint their own Republican electors, trusting that a conservative Supreme Court would interpret the constitution’s Article II Clause 2 dictum that, “Each State shall appoint, in such Manner as the Legislature thereof may direct” in an ‘originalist’ sense.

2.) Not send electors - preventing either candidate from receiving 270 electoral votes and forcing the race to be decided by the House of Representatives - where the Democrat’s majority is not what decides the race - as each state delegation will get one vote - and where the Republicans currently have a majority of state delegations - and which it looks likely that Republicans will continue to have a majority of state delegations in the new Congress.  

The Trump campaign has been sending legal memos to Republican controlled state legislators suggesting they be prepared to pursue this legal strategy for some time now.

So the question for Progressives is, what is the plan to make sure that the results are certified in time for the constitution's time frame?

Labor is already stepping up to fight back against any possibility of a judicial coup.  Unions led “Count Every Vote” rallies in Chicago, and around the country.  There are several planned in Michigan.  Attorney’s from labor, the ACLU, and more are ready to defend the vote.  We will all have to be prepared to take to the streets to demand “Count Every Vote.”

Perhaps, as more states are called for Joe Biden, cooler heads in the Trump campaign will prevail, and Trump will concede.  However, this is a President who will have lost the popular vote twice, who has refused to commit to a peaceful transfer of power, and who praised right-wing violence from Charlottesville, to Portland, to St. Louis, to Kenosha and more. 

Even as we stand on the precipice of seeing Joe Biden becoming President-Elect, we know that Trump will never ‘shut up, man.’ There will be no ‘painter’ Trump, no ‘building homes for the needy’ Trump, there will only be the incessant lies and whining on Twitter and on TV.  Trump will personally haunt the Biden administration, sowing insults, discontent, and rallying his base.  Even after Trump eventually passes, his supporters are an ingrained part of our politics.

We need to be prepared to continue to fight for progressive change that will help working families, even as we work to reform our election system to better reflect the popular will.