Which side are you on?

Buckle your seatbelts, it’s going to be a bumpy night:

Back in November of 2020, it wasn’t clear there were five votes at the Supreme Court to support the proposition that state legislatures could simply set aside election results they deemed tainted by impropriety. Recall that when lawyer/insurrectionists John Eastman (a Thomas clerk) and Jeffrey Bossert Clark floated that notion at the White House and elsewhere, serious DOJ attorneys told them in no uncertain terms to go away. Recall finally that one of the lawmakers in Arizona, Shawnna Bolick, is married to a state Supreme Court justice and is parent to Clarence Thomas’ godchild. Bolick, as Jane Mayer of the New Yorker reported in 2021, later introduced legislation that “would enable a majority of the legislature to override the popular vote … and dictate the state’s electoral college votes itself.” In other words, what Bolick couldn’t lawfully do in 2020 is a thing she hopes to do under color of law in future. Oh, and Bolick is now running for secretary of state, the office that oversees state elections.

The New York Times reported this weekend on the proliferation of Bolick’s fellow travelers: election-deniers seeking or holding office in states that will decide the winner of the 2024 presidential race. According to their tally, at least 357 sitting Republican legislators in swing states “have used the power of their office to discredit or try to overturn the results of the 2020 presidential election.” That number amounts to “44 percent of the Republican legislators in the nine states where the presidential race was most narrowly decided.” Moreover, election deniers around the country are running for secretary of state and attorney general—vying to be swing states’ top election officer and top cop, respectively. If successful, they can use this power to aggressively investigate bogus claims of voter fraud, attempt to nullify Democratic ballots, refuse to certify the true results, and even try to approve an “alternative” slate of electors for the loser. This is what Ginni Thomas was pushing two years ago, and what her husband has already deemed constitutionally permissible.

Will any of this work? The Thomases clearly think it will. At the same time Ginni was lobbying state legislators to overturn the results, Clarence was developing and promoting a constitutional theory that would lend legitimacy to just such a brazen coup. The justice has become an avid fan of the “independent state legislature doctrine,” a verifiably false, pseudo-originalist theory that allows state legislatures to ignore the real results and rig elections for Republicans. Thomas repeatedly deployed this theory during the 2020 race in an effort to void mail ballots in battleground states (which disproportionately favored Democrats). He later peddled a somewhat sanitized version of the Big Lie, falsely asserting that mail ballots—specifically, those used to elect Joe Biden in 2020—are highly susceptible to voter fraud. Ever since, he has continued to champion the theory whenever lower courts’ election law rulings happen to help Democrats. As our colleague Richard Hasen has pointed out, it looks increasingly likely that the Supreme Court will decide this issue by 2024.

The symmetry between Ginni and Clarence Thomas’ work has never been more obvious. While Clarence fought to give state legislatures the constitutional authority to reject election results, Ginni lobbied state legislators to do exactly that. A casual observer might assume they were working in tandem, with Clarence handling the law and Ginni working on the political side. They aren’t particularly subtle about it. You need only read Ginni’s emails and Clarence’s opinions to see exactly how the 2024 coup attempt will go down because it’s identical to the 2020 coup attempt: If a Democrat prevails, red state officials will question the legitimacy of the results, giving state legislatures an opportunity to throw them out and declare the Republican to be the real winner. This has nothing to do with liberals squelching Ginni Thomas’ feminist drive to have a separate and distinct political life apart from that of her spouse. More power to her. This has everything to do with two public actors working together to ensure that red state legislatures decide future elections in lieu of the voters.

The question remaining isn’t whether it’ll happen; the question is whether it’ll succeed. The Thomases tried this approach in 2020, but like Trump’s other allies, they developed their strategy a bit too late and didn’t buff out the crackpot edges until recently. But this time they’re putting in the work with plenty of time to spare. 

The question isn’t whether the 2024 presidential election is going to be stolen; it’s what we’re going to collectively do about it when it is stolen.

Here’s one answer that needs to be shot dead well ahead of time: This is our system, so we have to stand aside and allow legal or semi-legal or pseudo-legal or not even plausibly legal but the JUSTICES OF THE SUPREME COURT say it’s legal theft to take place right in front of us.

“Our system” is simply whatever you can get away with. The right wing in this country understands this all too well; if only squishy centrists and Reasonable Liberals ™ and leftists who don’t want to be bothered with doing anything beyond tweeting and instagramming snark understood it as well.

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