Federalized National Guard troops prepare to confront protesters in Los Angeles this week. Source: Rolling Stone Photo Credit: Jason Armond/Los Angeles Times/Getty Images
I have been trying to write about the electoral angle of the authoritarian actions of the Trump Administration, but current events keep distracting me. As Trump gets bolder with using the US military against its own people, arrests elected officials who are simply doing their oversight jobs or criticizing him, and is recklessly arresting and deporting thousands of people regardless of who they are and what their immigration or criminal status may actually be, the idea that we are going to have another free and fair national election seems less and less certain. It will take military force to accomplish canceling the election next year. Trump does not have the means to do so otherwise. A national election in the US is, as I have noted many times before, not one election but 51 separate state elections (including DC). How can Trump stop California and New York from holding an election or certifying the results of one? I am still working through the government and legal documents, but Trump’s ordering the military to occupy Los Angeles this past weekend raises new complications while also perhaps shedding some light on an overall strategy related to preventing unwelcome election results next year.
In March, Trump issued an executive order designed to undermine the electoral system in the name of fighting fraud. While Congress is unlikely to be able to pass legislation requiring voters to provide documentary proof of citizenship to register and vote, Trump is ordering the Electoral Assistance Commission to essentially do just that in this executive order. The EAC was created by Congress to, among other things, help standardize and facilitate voter registration across the states. Congress has by law made it illegal to demand documentary proof of citizenship as a requirement to vote (in short order, because it is so difficult to obtain for many people and can be fruitless where people have changed their names for marriage or other reasons).
The March order also directs states to identify unqualified voters and remove them from the rolls by sharing information with DOGE, the incompetent data mining operation Elon Musk created for Trump and himself. The order also directs states to count all absentee and mail votes only received by Election Day regardless of postmark date. Finally, it directs the EAC to condition any funding to a state on that state’s compliance with that rule.
Another executive order issued earlier in February aimed to give the president authority to order the independent Federal Election Commission to act according to his wishes. A court recently dismissed a Democratic Party challenge to this order as not ripe - that is, no injury has yet resulted - based upon statements from the Administration that it does not plan to act on the order and from members of the FEC that they wouldn’t obey unlawful orders. The case can be reopened if the circumstances change.
The executive orders are designed to give legal authority to disenfranchise potentially tens of millions of voters. They could be used to rationalize the canceling of the results of an election. It doesn’t matter if the orders (let alone the law) give Trump no authority to cancel anything. He can use the March order to argue that blue states allowed illegal voters to cast votes. He can use both orders to direct the EAC and FEC to either act or refrain from acting in ways to support his goals. In the end, it would be nonsense but all Trump and supporters want is some thin veneer of legality so they can argue that in destroying democracy they are following the law and saving it.
However, it is hard to see how Trump can stop any state from conducting the election or certifying the results without military intervention. It is highly unlikely that the courts will support any efforts to cancel either the election or the certification. In fact, one court has already enjoined parts of the March executive order and others have made clear that the president has no Constitutional authority to regulate elections. Failing a military intervention, Trump would have to rely on the outgoing Congress to refuse to hand over power to the incoming Congress. His best hope here for a non-military intervention would be for the Supreme Court to claim that the transfer of power is a political question that is not something the courts can rule on. I would say that can’t be correct, but it also cannot be correct that the president is absolutely immune from criminal prosecution once he leaves office. Turns out, the Court saw it differently, and it may on this score as well.
The invasion of LA on an invented rationale of insurrection may be seen as a test run for occupying blue states during an election on the pretense that the election is rigged (a form of insurrection). There is something especially fishy about what is happening in LA since Trump is bringing a show of force of the military into DC for his embarrassing parade on Saturday. He has already threatened severe reaction to any protests along the route. This may be how he insulates himself. Invoking the Insurrection Act is a legal action, subject to legal challenges. He may claim to invoke it to try to clothe his actions in legalities, but it is starting to smell like he is just going to - perhaps softly - declare martial law. By softly, I mean he may just start governing this way rather than making a declaration. However, this guy is such an egomaniacal carnival barker I doubt he can resist the urge to do so.
There may be trouble for Trump if he continues to ramp up the use of the military against the people. As G. Elliott Morris notes in his most recent Substack, while the polling on immigration and against the protests might favor Trump, the polling on using the military on US soil does not.
YouGov released a poll this morning which found that US adults disapproved of the use of the National Guard (-7 points) and Marines in LA (-13 points). In light of these findings, Morris argues that the slightly positive approval respondents give to Trump on immigration is likely due to their seeing the issue in more traditional ways rather than through the lens of what is happening in Los Angeles. The same poll shows 61% of Americans do not believe that undocumented immigrants who have committed no crimes should be deported.
The poll finds that Americans generally disapprove of the protests, too, by -9 points. It’s important to remember that Americans almost always disapprove of protest at the beginning. Large shares of Americans disapproved of the sit-in protests and other civil rights protests in the early 1960s. And in what has become a common refrain among centrists and conservatives tsk-tsking protests, New Frontier-era Americans said that those protests were only hurting the civil rights cause. Of course, that turned out to be completely untrue.
One thing that reactionaries and fascists have going for them today is a very different propaganda ecosystem that allows them to show selected images (sometimes from entirely different events, places, and times) and repeatedly hammer home anti-protest messages. This creates a floor where a lot of people who might otherwise be sympathetic to the protestors become obstinately opposed to them. The images many Americans are seeing from LA make it look like protestors are violently opposing the police, when in fact it is the exact opposite that is happening. We’ve seen this before - especially in the summer of 2020 when everyone watching Fox News was made to believe that every progressive community in the country was a war zone. Considering this, it is surprising - as Morris also notes - that as many Americans approve of the protests as reported (36%, as opposed to 45% disapproving).
Trump and the Republicans supporting with him are playing with fire by moving on protests with the US military. The polling suggests that while a lot of Americans don’t like the protests in LA, they really do not like the idea of using the military against them. I wonder what people will think watching the military parade on Saturday. People my age and older will remember how the Soviets did this regularly and how it always felt like it came from weakness rather than strength. In fact, Eisenhower rejected doing such a parade when he was president for this very reason. Whatever the next few weeks bring, this feels like it’s going to get worse before it gets better. If the Marines kill some kid this week in LA, who knows what happens then.
An idea for how make a difference
One thing we can all do now to help is show up for jury duty. If you get on a jury where the defendant is being prosecuted for essentially opposing this administration, make sure to acquit them. There will likely be hundreds or more prosecutions for trumped charges against protestors in LA, but we see similar prosecutions going on around the country - charging judges and elected leaders with crimes for doing their jobs, for instance.
There is a long history of what is called jury nullification in the Anglo-American legal tradition. Before judges started pushing back on what juries could decide in the mid-19th Century, the phenomenon was called jury independence. Juries were allowed and even expected to rule on the law as well as the facts of criminal cases. Instructions to them from the judge were considered advisory. As the professionalism of law grew, so did the idea that judges should control the legal decisions. However, jurors can acquit a defendant for any reason they want - so long as they are not accepting bribes. Once acquitted, no judge can undo that. The challenge tends to be allowing defendants to argue to the jury that they can use their own conscience to decide the law.
Getting called for jury duty is generally out of your control (although I believe you can volunteer in some places), but in some places you can almost guarantee getting a summons at some point. People often think of getting called as a burden. Try not think of it that way. It is one of the most effective ways in which regular people can participate in their own governance. And if you are lucky, you might be in a position to push back on fascism and help one of your fellow Americans.
And finally…
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