Julia Azari explores the ramifications of a difficult question and a painful reality in her Five Thirty Eight post, “What Happens If the Election Was a Fraud? The Constitution Doesn’t Say.” As Azari writes:
For all the headlines about Russian interference in the 2016 presidential election, no hard evidence has come to light, at least publicly, showing that President Trump or his team were involved. But suppose that such evidence did come to light — what would happen if it became clear that Trump or his advisers colluded with the Russians?1 This isn’t the only type of wrongdoingthe investigations could uncover, but it’s among the most serious because it would cast doubt on the legitimacy of the 2016 result. So, is there a process for dealing with a finding that in essence invalidates an election?
When it comes to presidential elections, the answer is: not really. The laws and processes around national elections have grown up in a piecemeal fashion over time, with state and local laws governing the administration of presidential elections. And the Constitution itself focuses more on ensuring stability than on administering elections. As a result, there aren’t clear procedures for how to handle questions of legitimacy after the fact — especially when those questions involve the presidency.
…The lack of an established process for reviewing elections points to a larger issue: The structures established by the Constitution assumed a world in which the presidency and the Electoral College were not fully absorbed into a contentious national party system. That vision has long since been replaced by one in which presidential elections are national contests over policy agendas and ideas. The text of our Constitution has never been changed to reflect this reality. Instead, the Electoral College remains the final word on who gets to be president. When it comes to the possibility that the winning side colluded with a foreign power to influence the election outcome, the Constitution doesn’t offer much in the way of a plan.
Democrats should press the case for a complete investigation of Russian meddling in the 2016 election, while keeping in mind the reality that Republican suppression of pro-Democratic voters, especially African Americans and gerrymandering are likely stealing even more votes than any foreign interference. There are also indications that Republican Secretaries of State are suppressing a lot of votes by delaying registration of voters. Consider, for example this disturbing excerpt from a Democracy Now report about voter registration problems in the recent GA-6 election, featuring voter suppression expert Greg Palast and voting rights activist Nse Ufot of the New Georgia Project:
GREG PALAST: Voting rights groups registered literally tens of thousands of minority voters, but, strangely, the voter forms simply vanished.
NSE UFOT: We registered over 86,419 voter registration forms.
GREG PALAST: How many again?
NSE UFOT: Eighty-six thousand four hundred nineteen. There are 46,000 of the folks that we’ve registered who have made it, and 40,000 of them are missing. And you know what they told us? “We don’t know what you’re talking about. What forms?”
GREG PALAST: You mean that 40,000 of the voters you had registered, mostly minorities, just disappeared?
NSE UFOT: They did not disappear.
GREG PALAST: Nse Ufot of the New Georgia Project.
NSE UFOT: With all four of my eyes, I—we walked into county boards of elections—county boards of registrars and seen boxes of voter registration forms waiting to be processed.
GREG PALAST: And if you complain about the missing voter registrations, you could face criminal felony charges, and your group could be destroyed…
Concerns about a fraudulent election at the presidential level may not come to much, if there is a lack of compelling evidence. Even if there is adequate evidence, the Trump Administration may delay action on it for a long time. Or the Republicans might take pre-emptive action/distraction by finally stepping up to impeach the President, since he has been so distructive to their brand.
Never before in American history has there been so much buzz about impeachment so early into a President’s term. Many political observers (see here for example) have been dismissive about the idea, more because of the difficulty of rallying the needed support than concerns about whether Trump’s mess meets impeachment requirements. Other progressives have worried about impeachment on strategic grounds — that impeachment could result in the worst case scenario of President Pence for two plus terms (the Constitution limits the time a President can serve to ten years. If the Republicans want Trump impeached, they have to time it in such a way that Pence would be sworn in just less than 10 years before his second term would be completed. We may see some tricky timing maneuvers by both Democrats and Republicans before any such impeachment drama runs its course). Forcing Trump’s resignation could accomplish the same result.
But Trump’s brand of lunacy could make avoiding impeachment impossible for Democrats, as well as Republicans. Who would bet that Trump will not do anything illegal, dangerous or outlandish enough in the next couple of years to make impeachment the only palatable choice for members of congress who want to get re-elected?
Between the GOP’s twin disasters of their health care debacle and Trump’s destructive tweets, they are on track to experience a rout in 2018. When your adversary is self-destructing, the argument goes, get out of the way. Don’t introduce another draining distraction.
For now, the best strategy for Democrats is to remain vigilant, while leaving the headache about removing Trump to the Republicans. The distracting drain on time, energy, money, credibility and emotions presented by mobilizing for impeachment properly belongs to Republican office-holders and operatives. Democratic resources can be better allocated elsewhere, like recruiting strong candidates, registering voters, fighting voter suppression and crafting a better message/brand for the party. Dems may eventually have to play a leadership role in impeachment, but not yet.