For the common good.

May 19, 2022

[Audio version here]

          The media narrative after Tuesday’s primaries is that Pennsylvania GOP gubernatorial candidate Doug Mastriano may single-handedly overturn the 2024 presidential election. There are well-founded reasons for concern about Mastriano’s intentions, starting with his public statements that he will attempt to deliver the 2024 election to Trump (or his surrogate). The Editorial Board of the Washington Post mused that Mastriano’s handpicked secretary of state could “certify a slate of rogue presidential electors, against voters’ wishes, and send them to Congress for counting. See WaPo, Pennsylvania governor’s primary result raises threat to US democracy. The NYTimes ran an article entitled, Midterm Stakes Grow Clearer: Election Deniers Will Be on Many Ballots, which warned that the “results make clear that the November midterms may well affect the fate of free and fair elections in the country.”

          The threats from insurrectionist candidates are real. But, as always, American voters will have a say in the outcome—a fact often overlooked in the media narrative. To minimize the threat posed by election deniers, voters must turn out in numbers that exceed the record-breaking turnout in 2020 and Democratic candidates must attack their opponents as seditionists and traitors. But in handpicking primary candidates who support the Big Lie, Trump selected extremists who are less electable in a general election. Mastriano will be a formidable candidate, no doubt, but he was not the strongest GOP pick in Pennsylvania primary.

          Mastriano was a controversial candidate even among the MAGA crowd, and Trump’s last-minute endorsement “enraged” GOP party regulars and extremists alike. See Politico, Inside the last-minute Trump endorsement that enraged Pa. Republicans. And the Cook Political Report changed its rating in the Pennsylvania gubernatorial race from “toss-up” to “lean Dem” after Mastriano’s victory in the primary.

Mastriano’s bombast and authoritarian style may appeal to the MAGA crowd, but it is unlikely to attract persuadable independents. So, before devoting all our attention to Mastriano’s plans to overturn the 2024 election, we should direct our energies towards defeating Mastriano—the surest way to avoid a constitutional crisis.

          It is also essential to understand what it would mean to “overturn” the will of the voters in Pennsylvania. WaPo, for example, says that Mastriano’s handpicked secretary of state might simply appoint a rogue slate of electors. Maybe—but that would be an illegal act that contravenes Pennsylvania statutes and the US Constitution, no small impediments. Let me explain.

           Article II Section 1 of the Constitution says that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” In a fashion similar to all other states, the Pennsylvania legislature has prescribed the “manner” of appointing electors, as follows:

Title 25 Pennsylvania Statutes § 3191 provides that “At the general election . . . there shall be elected by the qualified [voters] of the Commonwealth, persons to be known as electors of President and Vice-President of the United States . . . .  

Section 3192 provides that “The electors chosen, as aforesaid, shall assemble at the seat of government . . .  and shall then and there perform the duties enjoined upon them by the Constitution and laws of the United States.”

          Note that the above statutes are self-executing. Electors are selected in the general election and thereafter meet to perform the duties “enjoined upon them by the Constitution.” There is no role for the state legislature in the process—as the GOP Speaker of the Pennsylvania Senate admitted in the 2020 presidential election. See Commonwealth Foundation, No, Pennsylvania Lawmakers can’t Pick their own Electors. Moreover, the “powers and duties” of the Pennsylvania Secretary of State do not include “appointing electors” to the electoral college. See Title 25 Pennsylvania Statutes § 2621, “Powers and duties of the Secretary of the Commonwealth.”

          So, there would be no basis in law for Mastriano, the legislature, or the secretary of state to appoint an alternate slate of electors. Pennsylvania’s electors are chosen by voters “at the general election” on the day prescribed by Congress. Could Mastriano nonetheless attempt to violate the law and subsequently appoint false electors? Of course, he could—and he says he will try to do so. But if Mastriano falsely certifies a slate of electors, he would be committing a felony. Any such attempt would violate existing Pennsylvania statutory law and violate the equal protection and due process clauses of the 14th Amendment to the US Constitution.

          I am not saying that Mastriano might not be able to create confusion, delay, or crisis. I am saying that any story that speculates about what Mastriano might do in 2024 is incomplete if it fails to note that the authority to select electors has been delegated to the voters in the general election. Mastriano would be facing stiff headwinds in any attempt to override the will of the people of Pennsylvania. Don’t let anyone suggest otherwise.

          [This topic is more nuanced and expansive than the space permitted for discussion in my daily newsletter. For a more detailed analysis of the role of state legislatures in appointing electors, see, e.g., Lawfare Blog, State Legislatures Can’t Ignore the Popular Vote in Appointing Electors and Just Security, No, State Legislatures Cannot Overrule the Popular Vote.]

 Potential cracks in Russia’s united front regarding Ukraine

          A retired Russian colonel, Mikhail Khodaryonok, has created waves with his on-again-off-again criticisms of Putin’s war on the Ukrainian people. Before Russia invaded Ukraine, Khodaryonok wrote an article that said invading Ukraine was ill-advised and would not be completed in three weeks, as many military advisors suggested. Khodaryonok then walked backed those comments.

          Last week, Khodaryonok appeared on Russian television and said that the war was not going well for Russia, “that the Russian army’s position will frankly get worse,” and that Russia is “in full geopolitical isolation” as “virtually the entire world is against us.” See Slate, Something Extremely Interesting Just Happened on Russian TV.” The colonel appeared on television again this week and seemed to be back with the Russia propaganda program. He explained that although the Russian forces had failed to destroy American howitzers in previous attempts, they were sure to do so in future attempts.

          As Slate explains, Khodaryonok’s vacillation may reflect a clash of views “between the military officers’ corps and an elite division of the intelligence service, whose members have held enormous sway over Putin’s views.” Internal dissension among Putin’s advisors is a good sign. Let’s hope that it weakens Russia’s resolve and hastens the war’s end.

The role of Christianity in white supremacy.

          Over the last week, readers have continued to challenge my use of terminology to describe the root causes of the white supremacy and replacement theory that motivated the Buffalo domestic terrorist. Many pointed out that I had omitted the role of Christian evangelicals in spreading white supremacy and white nationalism. Another reader sent a link to an essay by Thomas Edsall in the NYTimes, Opinion | The MAGA Formula Is Getting Darker and Darker. Edsall’s essay is deeply thoughtful, addressing “the chilling amalgam of Christian nationalism, white replacement theory and conspiratorial zeal — from QAnon to the “stolen” 2020 election.”

          If you are struggling to understand the toxic mixture of religion, politics, and hate that motivated the Buffalo domestic terrorist, Edsall’s article is a good place to start. The reader who recommended the article wanted me to communicate another message from Edsall’s analysis: Victory is not inevitable; particularly if people don’t understand the nature of the forces they are fighting. . .  People need to understand that we are fighting for our democracy, and that its survival is not assured.

          I hope that nothing I write in this newsletter suggests that the survival of American democracy is “assured.” We face unprecedented challenges that must be met with every bit of effort we can muster. And I hope you are reading this newsletter not for comfort that “everything will be all right” but for inspiration “to carry on the fight” despite daunting challenges.

          Still, as we stare into the abyss of MAGA’s ugliness, we must also remember that America is a vast nation in which most people are decent, moral, and honest. They seek nothing more (or less) than to create opportunities for their families in a safe and healthy nation that treats everyone with equality and dignity. We cannot look away from the darkness of MAGA (and we must resist it with all our might), but we cannot allow it to obscure the fundamental strength and goodness of a great nation.

Help secure victory in North Carolina.

          Okay, I feel like this newsletter has been a bit of a downer, so let’s talk about something positive you can do. Several of my favorite organizations and people are coming together to support three inspiring North Carolina women building long-term political power in that state. The irrepressible Jessica Craven of Chop Wood, Carry Water will join Senate Circle, Seniors Taking Action, Team4NC, and All In For NC for a briefing on building political power in North Carolina.

          I have met with several of these groups (and featured them in the newsletter). If you want to be inspired about our long-term prospects for success in North Carolina (and across the nation), join them for their political briefing and fundraiser. You will be inspired and motivated—I guarantee it!

Details: May 25, 2022 at 7:00 PM Eastern. Register here: Winning North Carolina - Fundraiser for Poder NC Action and We Are Down Home.

Concluding Thoughts.

          I met with Seniors Taking Action today. Every time I meet with a group of citizens dedicated to preserving democracy and the rule of law, I am inspired anew. Like most activist groups that exist today, Seniors Taking Action was formed after Trump’s victory in November 2016. Groups of desperate volunteers that came together in fear and determination six years ago are now battle-tested veterans of two election cycles in which Democrats made significant advancements.

          Today, there are thousands of groups like Seniors Taking Action that meet weekly to plan events and sustain one another during difficult times. If you haven’t yet joined a group of like-minded activists, I urge you to do so. As Edsall’s article and the shooting in Buffalo highlight, parts of the American landscape are growing darker—but not all. We need to remind ourselves that in the struggle for democracy, the forces of good continue to outweigh the forces of darkness.

          Our challenge is to motivate our friends, family, and neighbors to join the struggle despite feelings of exhaustion and resignation. The best way to do that is to join together in community. If you want to see the real America, it is not on your television screens but in the faces of your friends, neighbors, and complete strangers who have come together to advance the common good.

          Talk to you tomorrow!