It isn't hard to understand why so many older immigrants from countries in Latin America, the Caribbean, Asia or Sub-Saharan Africa were deeply disturbed by the January 6 assault on the U.S. Capitol Building and former President Donald Trump's efforts to steal the 2020 presidential election: Trump's attempted coup d'état or golpe de estado is exactly the type of horror they hoped to leave behind in the countries they fled. The United States' checks and balances held up, but that doesn't necessarily mean that they will in the future — and legal scholar/election law expert Richard L. Hasen explained why he is so worried during an August 5 appearance on CNN's "New Day."
Hasen told "New Day" host John Berman, "I never expected to say I'd be scared shitless on CNN, but that's how I feel. I think that we dodged a bullet in 2020, but the way things are lining up, I'm very concerned about our elections going forward — especially 2024 and the possibility that we're not going to have an election where the results, the official results reflect what voters actually want."
Berman asked Hasen, who teaches law at the University of California, Irvine, to get into specifics and explain why he was "so concerned" that "people might just throw out legitimate results or have the power to."
Hasen responded, "If you look at the kinds of arguments that Donald Trump was making, they were not just the false claims of voter fraud — the Big Lie that has gotten so much attention. He has asked for state legislatures to override the will of the people. You remember, he wanted to have legislatures in Georgia, in Michigan, in Wisconsin, in Arizona change the election results — and he had, you may remember, I think it was, 167 members of Congress who voted along with him when they were counting the Electoral College votes. Now, things are lining up."
The election law expert continued, "Those who had the courage to stand up to Trump — people like Brad Raffensperger, the secretary of state of Georgia — those people have been pushed out or pushed to the side or censured by Republicans. And they're being replaced by people and are replaced with laws that are going to make it easier to subvert the will of the people if that's what the political pressure puts on them to make them do."
Berman noted that the claim that "it can't happen here" — the "it" being an authoritarian coup — is wrong, and Hasen wholeheartedly agreed with the "New Day" host.
Hasen told Berman, "The Constitution itself says that state legislatures can literally take away the power of voters to choose the president; they can choose the president themselves. So, you can have a state pass a law that says: We're not going to have an election for president. That's right there in Article 2."
It was also on August 5 that Slate published an article by Hasen that was headlined "Trump Is Planning a Much More Respectable Coup Next Time." And he laid out some reasons why he fears that Trump and his Republican allies may pull off in 2024 what they were unable to pull off in 2020: a stolen election.
"In recent weeks," Hasen wrote, "we've gotten an even greater glimpse into Donald Trump's efforts to discredit and overturn the results of the 2020 election. From the clownish ongoing audit in Arizona to the revelation of Jeffrey Clark's insane and rejected December plan for the Department of Justice to cajole legislatures in states Biden won into overturning those results to the attorneys being sanctioned for their frivolous Trump election lawsuits, the 2020 election subversion attempt is being shown every day to have been a Keystone Cops Coup."
But in 2024, Hasen fears, Trumpistas will be in a better position to steal the presidential election if they don't like the outcome.
"Come 2024, crass and boorish unsubstantiated claims of stealing are likely to give way to arcane legal arguments about the awesome power of state legislatures to run elections as they see fit," Hasen warned in Slate. "Forget bonkers accusations about Italy using lasers to manipulate American vote totals and expect white-shoe lawyers with Federalist Society bona fides to argue next time about application of the 'independent state legislature' doctrine in an attempt to turn any Republican presidential defeat into victory."
According to Hasen, Republicans may, in 2024, twist Article 2 of the U.S. Constitution to throw out democratic election results.
"Article II of the Constitution of the United States provides that state legislatures get to set the 'manner' for choosing presidential elections," Hasen explained in Slate. "Similarly, Article I, Section 4 gives the state 'legislature' the power to set the time, place, and manner for conducting congressional elections, subject to congressional override. In practice, these clauses have been understood as allowing the legislature to set the ground rules for conducting the election, which are then subject to normal state processes: election administrators fix the details for administering the vote, state courts interpret the meaning of state election rules, and sometimes, judges and officials decide when state rules violate state constitutional rights to vote."
Hasen concluded his Slate article by warning that the 2024 coup in the U.S. will be much slicker than the attempted coup of 2020.
"The January 6 insurrection, and Trump's actions trying to change the Electoral College votes in five states, was an attempted coup built on the Big Lie of voter fraud," the legal scholar wrote. "But the potential coup next time will come in neatly filed legal briefs and arguments quoting Thomas Jefferson and wrapped in ancient precedents and purported constitutional textualism. It will be no less pernicious."