But in the very formulation that some of these Republicans have adopted — and in the sheer numbers who have refrained from going even this far — there is grounds for serious pessimism about what all this portends.
What happens if the last-ditch tactic Trump’s team has adopted — trying to get rogue GOP-controlled state legislatures to appoint pro-Trump electors to the electoral college in defiance of their state’s voters — becomes seen as a conventional tool of political warfare, akin to more typical voter suppression efforts?
The responses from Republicans hint at ways this could become a ticking electoral time bomb. Many of them are merely suggesting that Trump should allow the transition to proceed. But they are also carefully stressing that he is absolutely within his rights to continue legal challenges.
And, tellingly, far fewer Republicans are denouncing the endgame that those legal challenges are all converging toward.
Trump’s desperate endgame
Right now, Trump and his allies are trying to block certification of the Michigan results on Monday, despite President-elect Joe Biden winning the state by more than 150,000 votes. As Sam Bagenstos and Justin Levitt explain, this is a demand that the board completely abandon its constitutional obligations, based on nonsensical claims about minimal irregularities in the county that includes Detroit.
Meanwhile, the Trump campaign is pursuing a recount in Wisconsin that argues for large classes of votes to be simply invalidated in counties that include Milwaukee and Madison. By shocking coincidence, many of these allegations of fraud, and these efforts to invalidate thousands of votes, are focused on areas with large Black populations.
That alone makes it awfully telling that many Republicans continue to assert that Trump is within his right to keep up these legal challenges, with precious little acknowledgment of their real intent.
But all this is the mere precursor to the final move: If certification can be stopped in these states, the play would then be to get their state legislatures to appoint pro-Trump electors, on the grounds that no electoral verdict was rendered.
That will fail. But how many Republicans are denouncing this aspect of the plan? When you see Sen. Lisa Murkowski of Alaska blast efforts to get legislatures to go rogue as “unprecedented” and “inconsistent” with democracy, what’s unavoidable is how rare this is.
Meanwhile, many Republicans are saying nothing at all about Trump’s refusal to concede, leading to startling journalistic passages like this one:
Still, most Republican lawmakers have not challenged Mr. Trump, in part because they fear that a public acknowledgment of Mr. Biden’s victory could undercut support from their conservative base before two critical Senate runoff elections in Georgia in January.
Republicans must avoid denouncing Trump — and his effort to subvert the election’s outcome by invalidating tens or hundreds of thousands of legitimate votes — in order to keep the base energized. To an unsettling degree, this is being treated as an ordinary and immutable fact of life about our politics.
Add it all up, and it’s plausible that in a closer election — with the correct confluence of a slim margin in a state where Republicans fully control the electoral machinery — such a scheme could be attempted and garner the active support of many elected Republican officials.
If that did happen, the ending would be uncertain, with a major crisis being a plausible outcome. Still, either way, Democrats will need to forthrightly grapple with the fact that they may need to win future presidential elections by a comfortable enough margin to insulate victories from such a scheme. But how?
Reform would be elusive
Reformers have a tool kit of proposals for combating anti-democratic tactics. It includes independent redistricting commissions to combat extreme gerrymandering, a rehabilitated Voting Rights Act to disarm voter suppression and uniform national voter registration and voting standards to depoliticize local manipulation of voting rules, among other things.
But the problem of a future state legislature appointing rogue electors could be particularly tricky to address.
All the states have passed laws requiring electors to be certified in accordance with voting preferences in them. But a truly rogue effort by a state legislature could pose a major problem.
Edward Foley, an expert in voting law at Ohio State University, notes that state legislatures really do need the ability to appoint electors in the case of a genuine failure to reach an electoral verdict. And for this reason, Congress actually does have to be required to consider a state legislature’s submission of electors when it counts the electoral college votes.
But there’s no obvious way you could build safeguards into the system to prevent the bad-faith exploitation of those necessary features. As Foley emailed me:
Instead, you must rely on either Congress’s good sense to reject any such frivolous submission or, preferably, the good sense of a state legislature not to attempt to subvert the popular vote in the first place.
While this time the state legislatures appear unwilling to carry out Trump’s scheme, and a few GOP senators have signaled that they would not agree to count rogue electors in any case, that’s hardly a guarantee against future breakdowns.
As long as we have the electoral college, Foley tells me, “we probably can’t perfectly solve the problem,” so the success of our electoral process may ultimately depend in part on enough actors on both sides honoring “a fundamental sense of fair play.”
Given what we’ve seen thus far, is that something we can really count on going forward?