Those elections won’t cancel themselves

Commenter Brandunaware is asking the classic old man question, as he himself characterizes it, of whether society has just gone all to hell recently, because of a general breakdown of the social contract:

As much as we blame a lot of this on Trump and the Republicans, and we should, it seems like there’s just been a general breakdown in morality and rules in our society. It’s a very old man coded thing to say, but the idea that gambling should be available not just everywhere but literally on a device we all have in our pockets would have been seen as absurd when I was a kid. And gambling causes a lot of harm. New York is adding casinos right in the city. Nobody cares anymore.

Crypto is similar in that it’s a vector for crime and money laundering and absolutely rife with fraud and everyone just kind of shrugs.

We all deal with constant fraud attempts via email and probably most of our phone calls. Every company has switched from trying to provide good service to trying to rip you off in various ways. It’s a total free for all. And it’s not just Trump or Republicans.

I guess this is a terminal stage capitalism thing but I do not care for it. Snow Crash was not an aspirational book.

And yes this is a classic old man thing to think and say . . . but that doesn’t mean it’s necessarily wrong about a particular time and place. After all, societies do suffer general breakdowns of law and morality, that go far beyond things like children walking the streets of our Texas towns with green hair listening to that hippity hop so-called music etc.

I mean look at the photo at the top of this post. I can say without false modesty that nobody over the past eleven years has been more cynical and therefore more prescient about the political future of Donald Trump — indeed ten days ago I predicted that we would soon see precisely the scene in that photograph — but when I look at it I’m still genuinely shocked, although not surprised, that we have sunk to levels of social degeneracy that have drilled down into the tectonic plates upon which the continents float.

Shocked but not surprised is now every non-fascist thinking person’s permanent state of mind, as illustrated by a couple of communiques I received from fellow sufferer from history Andrew Gelman. He asked the following now completely reasonable question (Trump has now suggested twice this month that maybe the fall elections should be cancelled):

Suppose the Republicans move to cancel or annul the 2026 elections.  What will be the justification from the center-right (the same people who never would’ve dreamed of annexing Greenland but now say it’s kind of a reasonable idea, the same people who never would’ve dreamed of endorsing insurrection but now say . . . the same people who never would’ve dreamed of shooting survivors on a boat but now say . . .)?

There’s always some justification, right?  The usual justification for any unconstitutional action is to bring up the Japanese internment in WW2, or Lincoln suspending habeas corpus in the civil war.  I guess the precedent for canceling the election is that Lincoln stopped the Maryland legislature from meeting when they were planning to secede.  But I assume they have some better rationale if needed.  Oh, here’s another one:  LBJ cheated when he ran for senate in Texas, and JFK stole Illinois, or so they say.  Also Biden only “won” because of those 20 million illegal alien voters.  Not that we can be sure, but how come the Democrats are all of a sudden so interested in election security now??

Before the elections are canceled or interfered with or annulled, the line will be that there’s no chance it could happen, and indeed the elections might be run fairly.  But if there is a problem, the justifications will come immediately.  I just wonder what they will or would be.

I told him I’d throw this out to LGM’s madding crowd, but before I could he gave the following answer to his own question:

There must also be a clause in the Constitution which could be interpreted in this way.  If Judge Taney could do it, so can we . . .

OK, here it is, right there in Article 1, Section 2:   “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”  There’s nothing that says that this has to be done by election.

Then in Article 1, Section 4:  “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations”.  So it looks like the Congress can just cancel the elections.  At any time.  Yes, this would seem to violate the bit in Article 1, Section 2, but that just says the members are “chosen” by the people, not that they are elected.

And of course the notorious Article 1, Section 5:  “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members” . . . and that pretty much covers it!

So what happens is that the House cancels the elections some time in the fall.  This goes to the courts, where the Supremes do an expedited review and say it’s too close to November for them to interfere in the political process and so just for this one time there will be no elections.  Or the elections happen, lots of suspicious events happen on election day, maybe the USPS loses a couple million ballots or maybe the election goes off just fine, but come January the House refuses to seat some of the Democratic winners (sorry, the Democrat “winners”).

The pundits then talk about how in 2020 the Democrats were canceling schools for no reason at all but then spreading Covid in their Black Lives Matters protests, so how come they say it’s wrong to cancel an election?  And how come the Democrats kept saying how secure our election system was in 2020 but now that they lose they complain about those missing postal ballots.  It’s only a “conspiracy theory” if it hurts the Democrats, huh?  And don’t you remember that Lincoln suspended habeas corpus and Roosevelt was kind of a dictator and Kennedy only won because of those dead voters in Chicago?

I can pretty much guarantee two things:

Your John Yoos and Josh Blackmans and Jeb Rubenfelds and various other stalwarts and fellow travelers of the Federalist Society rackets would at this moment probably dismiss such arguments as “obviously” absurd. (By contrast the Jazz Odyssey section of the legal right wing — your Alan Dershowitzs and John Eastmans and Adrian Vermeules — would find such arguments at least “intriguing,” if not — pending actual election results, naturally — obviously “the law”).

But Gelman is absolutely correct that, once the unthinkable has turned out not to be the undoable, the entire purportedly moderate and reasonable center-right wing will, like a troop of parrots, start squawking out the sorts of rationalizations he lists, while Bari Weiss’s CBS News, along with at least a couple NYT Op Ed pieces, will treat the question of whether the 2026 elections can legally be cancelled, or the results not accepted by the ruling party, as something that A Commitment To Freedom of Speech and a Diversity of Views requires Serious People to treat as A Very Difficult Question upon which many Eminent Constitutional Scholars disagree.

This is how the fascist sausage gets made, and if you still think that can’t happen here I really don’t know what to say any more, though I’m sure I’ll eventually think of something.

. . . I think there are three sequential possibilities:

(a) Cancelling elections. Unlikely for the reasons Jamelle Bouie lays out, but not impossible.

(b) Seriously fucking with the electoral process.

(c) Refusing to seat certain new members in January because of “electoral fraud”. (EAIAC)

The latter two are way more likely than the first, but the first is possible, because we’re spiraling pretty quickly now.