12 minute read
The Next January 6
PHOTO BY LIBRARY OF CONGRESS
THE NEXT COUP
THE THREAT TO AMERICA’S
electoral system did not end when the U.S. Capitol was cleared. From the January 6, 2022, program “The Next January 6.” This program is part of the Club’s Future of Democracy Series. BARTON GELLMAN, Staff Writer, The Atlantic ROY EISENHARDT, Lecturer, University of California Berkeley School of Law—Moderator
ROY EISENHARDT: Let’s start with the intuition you had back in October 2020 to foresee that there was not going to be—for the first time in our history, unless you count 1877—a peaceful transition of power from the former executive to the recently elected executive. Were did that intuition come from? BARTON GELLMAN: It started with a pretty simple proposition. It seems obvious to me and to lots of people that Donald Trump under no circumstances was going to concede the election if he lost. He simply doesn’t have it in him. It’s not in his personality. It’s not in his political strategy. He was going to insist that he had won no matter what and forever.
Once you start with that proposition and ask yourself, What tools does he have available to him to disrupt the peaceful transfer of power, to prevent the election from being decided against him? It turns out that it’s very complicated, and there are a lot of
possibilities, and I went through as many of them as I could think of.
Fundamentally, his objective was always going to be to get the state legislatures in Republican controlled states that Biden won—and those were the essential swing states—to appoint electors for Donald Trump, even though Biden had won that state election. EISENHARDT: Let’s drill down on that point. It’s a little nerdy to start citing articles in the U.S. Constitution, but in this case, I think it’s important that we understand that it’s not a baseless notion from outer space to suggest that state legislatures could, on their own, choose how electors vote, which leads us to unfortunately what we’re calling these days the independent state legislature theory. Perhaps you could explain that. GELLMAN: You’re right. Article 2 of the Constitution states that each state in the Union will appoint electors for president in the manner of the legislature’s own choosing. They have complete autonomy on that. In the days of the Founders, American citizens did not vote directly for president. They voted for their state representatives, and the state representatives voted for president.
It’s been more than 150 years since every state transitioned to a popular vote choice. So what we’re accustomed to now and what we think of as pretty fundamental to democracy is that you and I each get a vote for president and our votes determine the appointment of electors in our state.
The idea that Trump’s people had was that the legislature in a state like Wisconsin or Michigan or Pennsylvania or Arizona, all of which are Republican-controlled and voted for Biden, could take back the power to appoint electors. Now there’s no doubt that a state legislature could pass a law stating that from now on in Wisconsin, the people don’t get to vote anymore, and we in the legislature will choose our electors beginning with the next election. It would not be a very popular thing to do. I don’t think that any politician would think they could get away with it. But they have that power under the Constitution. It’s much less clear whether they have the power—and actually more than less clear, it’s highly dubious—whether they have the power after an election takes place, after the popular votes have been cast to say, “Never mind, we’re going to fire the voters. We are no longer interested in their opinion. We’re going to appoint electors by our own lights.”
There are intermediate positions that you could take on that, and the independent state legislature doctrine states that the power of the legislature is plenary, or unlimited and unbounded, to appoint electors; therefore, if, for example, county election authorities make any tiny change in the administration of elections that wasn’t explicitly authorized by the state legislature, then the legislature can hold that the election did not proceed lawfully and then take back the power to appoint electors. It is a fringe theory, I would say, [that] is being pushed right now by lawyers affiliated with The Federalist Society. It is taking advantage of the strategic fact that six or seven of the most important swing states in the country for presidential elections are governed by Republican state legislatures. So if you give them the power, you are tipping the balance decisively in favor of the Republicans.
There are four Supreme Court justices who have shown some sympathy with the independent state legislature doctrine. In cases where it wasn’t directly on point, but in dicta, or in dissent, they’ve shown sympathy for the idea, and we don’t know what Amy Coney Barrett thinks. She’s never been called upon to opine. So it could be that it comes back to the Supreme Court and something shifts in that direction. EISENHARDT: Justice Thomas feels that the doctrine is grounded in the 10th Amendment, as opposed to anything in Article 2, which basically says that powers not expressly granted to the federal government are reserved to the states. So if that were the applicable theory, that would give very wide sweep and credence to the right of the state legislature, whether they’re Democratic or Republican, to just bypass the popular vote and legislate their own set of electors. [This is] one of the underlying theories that stimulated a group of people around Trump to feel as though there was a way to bypass what we’ll call the Electoral Vote Count Act and have Pence basically certify the election for Trump. But that took a lot of people to be complicit. Some of it was [that] they just wanted to stay in power and keep their job. But a lot of the support was external to that day of certification one year ago today; [it] was the theory the election was stolen. . . . What were the demographics of the people who actually found the motivation to go to the Capitol and at least at the minimum protest and at the maximum sit in Nancy Pelosi’s office with their feet up on the table? GELLMAN: Well, it’s an interesting group, and you have to distinguish between what Trump supporters believe and what their elected leaders, the leaders of the Republican Party, believe. I’m quite convinced that if you were able to administer truth serum to Republican senators and members of Congress and governors and state legislators, the vast majority of them understand that Joe Biden won the last election. And they are either afraid to say so or opportunistically leaping upon the bandwagon of the stolen election in order to curry favor with the Trump electorate.
But a great many—tens and tens of millions—of Trump supporters have been driven honestly to believe that the election was stolen. They are convinced by the floodgates of propaganda that have come out of their their leadership and have come out of Fox News and One America News and the social networks that they’re part of.
I spent weeks and weeks in conversation with this one Trump supporter for my latest magazine piece, when I was trying to plumb the roots of his belief on this; and it was unshakable no matter how much evidence I brought to him that his reasons were incorrect. So the people who came to the Capitol were, number one, true believers. They were not typical of the profile of politically violent people in the past. In U.S. history, including quite recent U.S. history and actually around the world, according to experts who study this, political violence is committed largely by young men in their twenties, disproportionately unemployed, low educated, poor prospects in society. That is not at all what we saw on January six. What we saw was very much a middle class, educated, employed, mean age was 42 years old, which is wildly out of sync with history on this thing.
What it shows is that we have a politically violent mass movement in America now for the first time since about 100 years ago, with the rise of the second Ku Klux Klan. You have tens of millions of Americans who are prepared to tell pollsters that violence is justified to restore Trump to power. That is a terrifying figure to me and one that shows a considerable degree of collapse of our governing institutions. EISENHARDT: What about where these people live, the committed people who went to the Capitol that day? Conventionally, on a multiple choice test, I would have checked they’re from rural, predominantly red states. I gather that actually is the wrong answer. GELLMAN: It is the wrong answer, and it’s fascinating. There’s a group at the University of Chicago called CPOST that went through all the records and other public records and found the home county for each of the now more than 700 defendants in the Capitol cases. They are much more urban than rural.
—BARTON GELLMAN
They are not likely to come from heavy Trump-voting counties; they’re likeliest to come from counties where the vote was very close and they’re frustrated. Many of them came from Biden counties, where Biden had won by a small margin.
And if you go through all the demographics and characteristics of the counties that [they’re from]: Maybe they come from counties where unemployment is high. No, not true. Maybe they come from counties where education is low. No, not true.
What they come from is counties where the proportion of the white non-Hispanic population is on the decline. If there are fewer white people now in your county than there were 5 or 10 years ago, you are much more likely to have come from there and headed to the Capitol and taken part in the insurgency on January 6h. That fits with polling data that shows that people who share the beliefs of the January 6 insurgents—there are two key beliefs, one being that Joe Biden stole the election and the other being that violence is justified to set that right—they also, by a super majority, believe that black and brown people are replacing white people in terms of position, power and status in this country. They’re a believer in the religious part in a theory called the great replacement, which has been, for example, pushed by Tucker Carlson on Fox News. The idea that in his version of it, that Democrats are deliberately trying to increase the number of so-called Third World immigrants to this country to replace white voters and to change the nature of this country. Of the 21 million people who agree with the January 6 insurgents, two thirds of them believe in the great replacement. So there is a significant amount of racial resentment behind all this. EISENHARDT: Let’s assume that we are trying to formulate policies—we being the Democrats, the Republicans, the independents—policies that are going to bring some kind of a reconciliation of this polarized world. Similar to the way Lincoln approached the end of the Civil War, it was not to put all of the Confederates in jail and make Robert E. Lee a criminal. It was to give them their horse and their gun and say, “Go home and let’s form a new nation.” In an optimal, perhaps naive view of what could be the best future, it would be some kind of a reconciliation like that.
But how does the Democratic Party— because they’re the only functioning party right now—develop a political strategy that can embrace those people rather than saying, “Oh, you’re stupid, you believe this, that’s so obviously false. How can you think that?” And basically shaming them. In other words, we have to find a policy that doesn’t shame but recalibrate how we look at our social responsibility to each other. GELLMAN: That calls for an extraordinary kind of political leadership that I don’t see immediately on the horizon. But I wonder about your analogy. And I’m making this up on the fly, so that’s probably a mistake. But our situation now is not like the one in which North and South fought about whether slavery was good or bad or acceptable or necessary.
It’s almost as though right now we’re fighting about whether slavery even existed. And you have half the country saying, “What slavery?” Yeah, because you have 40 percent [of the country] that says, despite all the evidence, that Joe Biden lost the last election and believes fairy tales that are completely departing from the empirical world about what really happened with, you know, Italian satellites and dead Venezuelan dictators changing votes and taking over election machinery and nonsense like that. If you have polarization on the basic foundations of knowledge, it’s a very hard thing to see how to bridge those gaps. EISENHARDT: I agree with your polite qualification of my parallel, because the Confederacy did not deny Lincoln was elected. They just didn’t like Lincoln’s policies. That’s a different paradigm.
But we’re not going to win back the health of democracy by making one side admit they were wrong and misled and stupid. We’re going to win it back by having people realize that, fundamentally as a nation, we have to live with the fact that we have disagreements. And we have to live with the fact that some of the problems for democracies to solve, like economic inequality or the effects of globalization, are challenging and neither side really has the answer to it. But that has to be a common goal to use an agreed upon system of government.
What I worry about is if people are so embedded in the correctness of their position, people like you or Anne Applebaum or George Packer or many of the other authors at The Atlantic can write very erudite articles describing the problem, but how many people’s minds will you change by describing the problem? GELLMAN: The political scientists who study this right now say that although there are significant differences in policy among Americans on the two sides, they are not as fundamentally split on policy questions on what we should be doing. Yeah, they are split affectively. That is to say they hate each other, the polarization of hatred is much stronger than the polarization of policy, to the point where many people are convinced that only violence can solve the problem.
