The Not-So-Secret Plan

October 29, 2024

During Trump's hate-fest rally in Madison Square Garden on Sunday, Trump alluded to “a little secret” that he and Speaker Mike Johnson share that is having “a big impact” and will be disclosed after the election. Some Democrats immediately catastrophized the comment and assumed (wrongly) that Trump will successfully cheat his way into the presidency (again). To be clear, he will try. To be clearer, he will fail.

We can discuss Trump's Not-So-Secret Plan in a moment, but let’s discuss the Democratic Not-So-Secret Plan first—run up the score against Trump so that the outcome is unassailable and beyond the reach of corrupt officials, crooked politicians, and compromised Justices.

It cannot be said enough: 2024 is a turnout election and the first line of defense is a strong margin of victory in both the popular vote and the electoral college. But even if the electoral and popular votes are close, there are constitutional, statutory, congressional, and judicial lines of defense that will serve to protect the will of the people.

I received dozens of emails and Comments from readers forwarding ominous warnings from poorly informed commentators making vague predictions about Trump overturning the election. Those commentators frequently suggest that the House of Representatives will refuse to “certify” the electoral vote or that the House will ignore the electoral ballots and vote to install Trump as president.

The problem with those ominous predictions is that they ignore the text of the Constitution, the Electoral Count Reform Act (ECRA), and statutes in 50 states mandating electors be allocated based on the popular vote. As I scanned major media and social media over the last 24 hours, I was shocked by the fact that many pundits and politicians opining on how the electoral vote can be hijacked appear to have never read the Constitution or the ECRA.

Fortunately, Professor Laurence Tribe has read the Constitution and has a thing or two to say about Trump's Not-So-Secret Plan to interfere in the outcome of the election. See Neil H. Buchanan, Michael C. Dorf and Laurence H. Tribe, Washington Post, Opinion | Stop worrying that the House will decide who wins the election. (This article is accessible to all; although I have canceled my subscription, I am prepaid through the end of the year.)

The thesis of Professor Tribe and his co-authors is this:

If the Constitution’s text means anything, however, the one nightmare scenario that should not worry anyone is that the next president will be chosen by the U.S. House of Representatives.

The details follow, but next time a pundit looking for TV cameos or social media clicks tells you that “the House will decide the election,” come back to this article to remind yourself why that scenario is highly unlikely.

Tribe and his co-authors address the widespread mistaken belief that a red state can prevent VP Harris from winning by refusing to certify the state-level results. (Note: A state’s executive (governor)—not the legislature—identifies the winning slate of electors by transmitting a “certificate of ascertainment” to Congress and the National Archive on December 11, 2024.)

Under this mistaken theory, rogue states can (allegedly) prevent Kamala Harris from getting 270 electoral votes by refusing to certify the state-level results.

But as Professor Tribe and his co-authors explain,

The relevant language in the 12th Amendment is admirably clear: “The person having the greatest number of [electoral] votes shall be the President, if such number be a majority of the whole number of electors appointed.” If that majority is not achieved, the House would properly decide the election.

So, to win the presidency, a candidate needs a “majority of the whole number of electors appointed.” In other words, not 270, but “a majority of the electors appointed.”

If rogue red states withhold the appointment of electors, then the “number of electors appointed” is reduced—and so is the numerical threshold necessary to reach a “majority.”

As Tribe et al. explain,

One plausible scenario involves Harris winning all of the swing states except North Carolina and Georgia, and thus besting Trump 287 to 251. Suppose that Trump then succeeds in preventing the appointment of any Pennsylvania electors. Harris should still win: 268 to 251.

This is where an accurate reading of the 12th Amendment comes in. It doesn’t matter that Harris’s 268 votes would not be a majority of the full 538 electoral college votes. The amendment says the victor must receive “a majority of the whole number of electors appointed” — not that could have been appointed. In this example, she would win by virtue of having received a majority of the 519 votes cast after Pennsylvania’s were discarded.

Kamala Harris would still win even if Georgia and North Carolina also refused to appoint electors. If red states in which Trump wins the popular vote refuse to appoint electors, that hurts Trump, not Kamala Harris. Moreover, it reduces the numerical threshold that Kamala Harris would need to win a majority of the electoral college.

As Tribe et al. note, the Not-So-Secret Plan of Trump might involve a state legislature replacing the slate of electors appointed the popular vote. But any such effort by a state legislature would violate the Electoral Count Reform Act and the state’s own laws that provide electors are appointed by popular vote—and that the state legislature cannot change the method of selection after the fact.

At root, the “Not-So-Secret Plan” of Trump and Mike Johnson is to resurrect the Independent State Legislature theory in which state legislatures are free-floating, extra-constitutional entities that can do whatever they want—including overriding the will of the people after a popular vote has selected the electors. The Constitution says no such thing and the Supreme Court refused the invitation to adopt the Independent State Legislature theory in Moore v. Harper (2023).

It is unlikely that the Supreme Court will reverse the one-year-old precedent in Moore v Harper (a 6-3 majority opinion written by Chief Justice Roberts). That doesn’t mean Republicans are giving up. As noted by Ian Millhiser in Vox, Republicans filed a petition on Monday asking the Supreme Court to consider the Independent State Legislature theory. See Ian Millhiser, Vox, The new Supreme Court case that could change the winner of the presidential election.

I am not happy with Millhiser’s sensationalized headline because he notes in the article that “realistically, preventing these voters from having their votes counted will not change the result of the 2024 election” unless the election comes down to Pennsylvania and Kamala Harris leads in that state by only a couple thousand votes and the Supreme Court reverses Moore v. Harper. Unlikely, to say the least.

But I digress. The point made by Professor Tribe et al. is that pundits and legal commentators must stop referring to “270 votes to win” the Electoral College. Per Professor Tribe, “Failure to do so — letting the erroneous reading [270 to win] become the conventional wisdom — could allow Congress to accept and act on it.”

I would extend Professor Tribe’s cautionary warning to erroneous language asserting that Congress “certifies” the election. It does not. Per the 12th Amendment and the ECRA, the electoral ballots are opened, announced, and tallied. At that point, per the ECRA, Vice President Kamala Harris, acting as the President of the Senate

shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States.

The above is critically important: It is the “announcement” by Vice President Kamala Harris, sitting as President of the Senate, that is the act that “declares . . . the persons elected.” There is no reference to “certification” of the vote by Congress—and it is wrong and misleading for commentators to continue to refer to Congress “certifying” the election. Congress does not “certify” the election.

Hope that helps. Professor Tribe’s article in WaPo is unlocked and I urge you to read it if you are anxious about the “Not-So-Secret Plan” hatched by Trump and Speaker Mike Johnson.

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Listen to Michelle Obama’s plea to “the men who love us.’

Michelle Obama gave a speech in support of Kamala Harris at a rally in Michigan two days ago. The speech is being widely credited as the most effective speech by a surrogate in support of Kamala Harris. The complete video of the speech is here: Michelle Obama rallies for Harris in Michigan.

I recommend the entire speech to your attention.

But the last eight minutes of the speech are remarkable. In this segment, Michelle Obama makes a plea to “the men who love us” to consider what America will be like if women continue to be denied basic healthcare. See YouTube, Michelle Obama: To the men who love us . . .

I strongly urge everyone—but especially men—to listen to Michelle Obama’s plea, which concludes with a question to men about “which side of history do you want to be on.”

If there is a man in your life who believes that election is only about inflation and immigration, I hope that Michelle Obama’s speech linked above can persuade them that the wholesale demotion of women to second-class citizen status with the attendant health risks is an issue that is at least as important as the issues that seem inexplicably to be the only area of concern for most men.

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Jeff Bezos speaks

Jeff Bezos published an op-ed in the Washington Post entitled Opinion | The hard truth: Americans don’t trust the news media. (Accessible to all.)

For an op-ed that should have been an apology, I think it misses the mark. My opinion remains expressed in the title of the newsletter addressing Bezos’s decision: “Silence in the face of fascism is cowardice.”

Bezos writes, in part,

Presidential endorsements do nothing to tip the scales of an election. No undecided voters in Pennsylvania are going to say, “I’m going with Newspaper A’s endorsement.” None. What presidential endorsements actually do is create a perception of bias. A perception of non-independence. Ending them is a principled decision, and it’s the right one.

Bezos claims that his decision was not a “quid pro quo” for a meeting between Trump and his spaceflight company, Blue Origin. He also claims that the timing of the decision was “poor planning.”

I wish we had made the change earlier than we did, in a moment further from the election and the emotions around it. That was inadequate planning, and not some intentional strategy.

In the end, Bezos tries to wrap himself and his decision in a broader “distrust of the media.”

Lack of credibility isn’t unique to The Post. Our brethren newspapers have the same issue. And it’s a problem not only for media, but also for the nation. Many people are turning to off-the-cuff podcasts, inaccurate social media posts and other unverified news sources, which can quickly spread misinformation and deepen divisions.

Everything Bezos says may be true (although I don’t believe it is). Accepting it as such, he fails to address the moment in which we find ourselves and the one in which he made his decision to be neutral: On the cusp of a threatened fascist regime in which his newspaper had a major hand in normalizing the emergent fascist threat.

Neutrality in the face of fascism is cowardice.

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Latest polling shows Dan Osborn tied with Republican Deb Fischer in Kansas race for US Senate

Independent Dan Osborn is now effectively tied with GOP US Senator Deb Fischer in Kansas among likely voters. Per HuffPo,

Fischer leads Osborn by just two percentage points among likely voters in a New York Times/Siena College survey released on Monday — 48% to 46% — putting her lead within the margin of error, with Osborn actually leading among registered voters. Five percent of respondents said they were undecided.

Readers of this newsletter have been incredibly generous in supporting Osborn. But if anyone is looking for a late opportunity to invest in a seat that might save the Senate for Democrats, helping Dan Osborn to defeat Republican Deb Fischer is an investment worth considering.

If you haven’t had a chance to see Dan Osborn, this video from an event co-sponsored by 31st Street Swing Left, the video of the event is here: 31st Street Fundraiser - Nebraska - Dan Osborn

If you want to donate directly to Osborn’s campaign, you can do so through 31st Street Swing Left’s site: Dan Osborn / 31st Street Swing Left Donation Link/ Act Blue.

There is an additional reason to consider supporting Osborn—bringing out Democrats and independents in Omaha. Although Trump leads Kamala Harris by a large margin in Nebraska, that state is one of two that allocates electoral votes by congressional district.

Kamala Harris can win one out of five electoral votes in Kansas if she takes the Omaha congressional district. Motivating a strong Democratic and independent turnout in Omaha will help ensure an additional electoral vote for Kamala Harris. In some scenarios, that single vote gives Harris a two-vote margin of victory—avoiding a tie in the electoral college.

Thanks for considering this request. I know that many people are tapped out at the end of the election season. But I have been receiving requests from some readers about late opportunities to direct money to races that might matter. Preventing a Republican majority in the Senate could have far reaching consequences in Kamala Harris’s administration.

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Opportunities for Reader Engagement

One last appeal from PostCardsToVoters:

FINAL PUSH FOR POSTCARDS for PostcardsToVoters to finish the address lists for Congressional candidate Rep. Yadira Caraveo for CO, a DCCC Red-to-Blue Toss-Up race; and for two Michigan Supreme Court seats (one needs to win to keep the majority and they are non-partisan races so Dems need to be alerted as to who to vote for—both are on one postcard that will also bring out votes for Elissa Slotkin for Senate and for Harris-Walz in a swing state); and for state legislative candidates James Skoufis for NY (he is off the list tonight but will be back on for Tuesday & Wednesday so check back), and for Ashwin Ramaswami in GA.

Even five postcards help! Every postcard could be a vote! And these will be very close races!!

***Deadlines*** to mail are Tuesday and Wednesday: Tuesday for everyone, unless you are in the state or an adjacent state, in which case you can mail Wednesday. Please mail from inside a PO if you can.

To join PTV, email postcards@TonyTheDemocrat.org  If you already joined, PTV has a brand new easy-to-use webpage to get addresses and script. Go to Abby.postcardstovoters.org to get started! PTV does not send many emails at all and does not give your info away. But if you sign up, you will be alerted about any runoffs or Special Elections that come up! THANK YOU!!!!!!

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Concluding Thoughts

Many of you know that my wife posts a daily video blog. Today, she posted a reflection about the journey from 2016 to 2020 to 2024. The video is here: Pam & Me: Voting Together. It begins with a chance meeting between my wife and a neighbor (Pam) outside the polling both in 2016 as both were excited about the opportunity to vote for the first woman president. We all know what happened next. But there was the redemption of 2020 and the promise of 2024. And here we are.

The experience of 2016 is making the run-up to Election Day 2024 almost unbearable for many. It is true that the race is close but the signposts are all pointed in the right direction. As Josh Marshall at Talking Points Memo noted today, Republicans are finally admitting that they failed to mount an organized ground game in several critical swing state.

Yes, it will be close. But a rational person trying to see patterns in the data would recognize that one side has momentum and enthusiasm. The other side is motivated by grievance and fear. Anxiety is unavoidable but do not let the experience of 2016 extinguish your capacity for hope.

We should win. We can win. But we are guaranteed nothing—other than our own constancy and dedication. And in the end, that is the only thing that will matter in achieving ultimate victory over the long run.

We truly have every reason to be hopeful but no reason to be complacent.

Talk to you tomorrow!

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Daily Dose of Perspective

The image below is of Lower’s Nebula, which is 2,900 light-years from Earth and has a diameter of 26 light years.