Biden gave a good speech yesterday. But there's nothing he or Congress can do to prevent Trump from successfully pulling off a technically legal coup in 2024.

I'm no great fan of President Biden, as I've made clear. But I liked his speech commemorating the one-year anniversary of the attack on the US Capitol. Some choice excerpts:

This wasn’t a group of tourists. This was an armed insurrection.

They weren’t looking to uphold the will of the people. They were looking to deny the will of the people.

[T]hey weren’t looking to uphold a free and fair election. They were looking to overturn one.

They weren’t looking to save the cause of America. They were looking to subvert the Constitution.

This isn’t about being bogged down in the past. This is about making sure the past isn’t buried.

[...]

The former president of the United States of America has created and spread a web of lies about the 2020 election. He’s done so because he values power over principle, because he sees his own interests as more important than his country’s interests and America’s interests, and because his bruised ego matters more to him than our democracy or our Constitution.

[...]

Instead of looking at the election results from 2020 and saying they need new ideas or better ideas to win more votes, the former president and his supporters have decided the only way for them to win is to suppress your vote and subvert our elections.

It’s wrong. It’s undemocratic. And frankly, it’s un-American.

[...]

Even before the first ballot was cast, the former president was preemptively sowing doubt about the election results. He built his lie over months. It wasn’t based on any facts. He was just looking for an excuse — a pretext — to cover for the truth.

[...]

Just think about this: The former president and his supporters have never been able to explain how they accept as accurate the other election results that took place on November 3rd — the elections for governor, United States Senate, the House of Representatives — elections in which they closed the gap in the House.

They challenge none of that. The President’s name was first, then we went down the line — governors, senators, House of Representatives. Somehow, those results were accurate on the same ballot, but the presidential race was flawed?

And on the same ballot, the same day, cast by the same voters.

The only difference: The former President didn’t lose those races; he just lost the one that was his own.

[...]

You can’t love your country only when you win.

You can’t obey the law only when it’s convenient.

You can’t be patriotic when you embrace and enable lies.

Those who stormed this Capitol and those who instigated and incited and those who called on them to do so held a dagger at the throat of America — at American democracy.

They didn’t come here out of patriotism or principle. They came here in rage — not in service of America, but rather in service of one man.

[...]

I will stand in this breach. I will defend this nation. And I will allow no one to place a dagger at the throat of our democracy.

We will make sure the will of the people is heard; that the ballot prevails, not violence; that authority in this nation will always be peacefully transferred.

I believe the power of the presidency and the purpose is to unite this nation, not divide it; to lift us up, not tear us apart; to be about us — about us, not about “me.”

Stirring words (written in part by the great Jon Meacham, whose eloquence clearly shows through) and an important gauntlet to throw down. But let’s examine the legal and electoral difficulties Democrats will confront in 2024 in their effort to ensure the will of the people prevails.

Democrats are proposing various changes to federal election law, while Republicans are even signaling an openness to changing or repealing the Electoral Count Act, which governed the electoral vote counting procedures Congress was engaged in on Jan. 6. All well and good (well, almost all--I don't support banning partisan gerrymandering), but totally insufficient.

Trump and his allies are laying the groundwork for GOP-controlled state legislatures to name their own slates of electors, regardless of how people vote. Which will of course be redundant in deep red states, but is a real danger in swing states in which the state legislatures are under Republican control but where the popular vote often goes to Democrats in presidential elections.

Reforming the Electoral Count Act cannot fix the state legislature problem, nor can any other act of Congress or presidential executive order. It would require a constitutional amendment (fat chance). From Article II Section 1 (emphasis mine): “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”. Pretty clear that state legislatures have this power, and it's a pipe dream to think you can get two of the six conservatives on the Supreme Court to disagree (you might be able to get Roberts, but that's not enough, even in combination with the three liberals).

What's going to be necessary (and this is not impossible but much more difficult than the quaint old-fashioned approach where you win the popular vote in enough states) is to have a massive campaign to flip state legislatures in purple states. If not making them entirely blue, at least cobbling together a working majority from Democrats plus enough moderate (and spine-possessing) Republicans who pledge not to overturn the will of voters.

There are five Biden states which have both houses of their state legislatures currently controlled by Republicans: Arizona, Wisconsin, Michigan, Pennsylvania, and Georgia. If you award all those states to the GOP presidential candidate (i.e. Trump) and keep all the other states the same, it's a comfy Republican win:

(After making this map, I realized you can presumably bump that up to 307 with the district in Nebraska.)

But Republicans don't need all five. Pennsylvania and Georgia would be sufficient, or any three of the five. Pennsylvania and Georgia would not be sufficient for Democrats, and even three of five might not be enough: they need 39 electoral votes total from those five states, which means either three of five or four of five depending on which ones they get.

What's unclear is whether this constitutional language requires governors to sign off on what the state legislatures do. If so, that gives Republicans only Arizona and Georgia, plus the one extra vote in Nebraska, and leaves them seven electors short. But this bulwark depends on Dems holding all three of the other governors’ mansions in the midterms this November. Tom Wolf is term limited, so the Dems will need to nominate a strong candidate in Pennsylvania. In the two Great Lakes states, I assume Evers and Whitmer will face tough headwinds in their efforts to win reelection. If they fall short in one of these three, the danger of a technically legal Trump coup surges.

To sum up the magnitude of the problem:

(1) The Democratic presidential candidate will almost certainly win the nationwide popular vote, but this is irrelevant as we saw in 2000 and 2016.

(2) The Democrat may well also win the majority of popular votes in a sufficient number of states to ostensibly provide a majority in the Electoral College, but that too is irrelevant unless Democrats make sure to win some key gubernatorial elections (still possibly insufficient).

(3) To really be sure, Democrats must flip some state legislatures despite major structural advantages for Republicans that allow them to win a majority of seats without a majority of votes. For example, in Wisconsin a political scientist calculated that “Democrats would need to win the state by about 8.2 percentage points to win a bare majority of 50 seats”.

So: still kind of a grim picture. Or at least a very dicey one. 😬

Happy New Year!