Die amerikanische Verfassungskrise I

Das hier ist auch ein Nachgang zu der kurzen Einführung in „Staat oder Revolution“ Bd. II letzten Samstag im Garten der TU Berlin. Dort ging es u.a. darum, wie die liberalen Demokratien des sogenannten Westens entstanden sind, und auf welcher Grundlage. Wieviel von dieser Grundlage noch übrig ist, zeigt uns vielleicht die nächste Zeit; The Atlantic hat eine ausführliche staatsrechtliche Analyse.

“Our Constitution does not secure the peaceful transition of power, but rather presupposes it,” the legal scholar Lawrence Douglas wrote in a recent book titled simply Will He Go?

Wer 1999 schon dabei war, erinnert sich an Bush v. Gore und die juristische und politische Schlacht um die Wahlauszählung in Florida. Es ist argumentiert worden, dass sich im Effekt durch den Ausgang der Wahl gar nicht so sehr viel geändert hat; vor allem hat die Verfassungs sie ja auch anscheinend überstanden. Es kann diesmal sehr leicht anders kommen, die Verfassungskrise kann zu einem Punkt eskalieren, wo sie juristisch nicht mehr lösbar wird: zu völligem Verfassungsversagen.

If we are lucky, this fraught and dysfunctional election cycle will reach a conventional stopping point in time to meet crucial deadlines in December and January. The contest will be decided with sufficient authority that the losing candidate will be forced to yield. Collectively we will have made our choice—a messy one, no doubt, but clear enough to arm the president-elect with a mandate to govern.

As a nation, we have never failed to clear that bar. But in this election year of plague and recession and catastrophized politics, the mechanisms of decision are at meaningful risk of breaking down. Close students of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result.

Es ist ja nach Ausgang der Wahl in einigen Staaten (es sind übrigens derselben, in denen Trumps Regierung in den letzten Monaten innere Spannungen schürt) möglich, dass ein verbindliches Wahlergebnis nicht erreicht wird, genauer gesagt: dass ein solches Ergebnis vereitelt und hintertrieben werden kann.

Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand.

“We are not prepared for this at all,” Julian Zelizer, a Prince­ton professor of history and public affairs, told me. “We talk about it, some worry about it, and we imagine what it would be. But few people have actual answers to what happens if the machinery of democracy is used to prevent a legitimate resolution to the election.”

Keine Rechtsordnung ist ganz ohne Inkonsistenzen, natürlich, denn keine Verfassung ist völlig als System von Rechtssätzen beschreibbar. Die amerikanische Verfassung hat bisher damit leben können. Viel ist durch sogenannte norms erfasst; man kann es nicht mit Normen übersetzen, eher mit Gepflogenheiten. Bestimmte Regeln, an die man sich hält, gerade damit aus einer Wahl keine Verfassungskrise wird:

The ritual that marks an election’s end took its contemporary form in 1896. On the Thursday evening after polls closed that year, unwelcome news reached the Democratic presidential nominee, William Jennings Bryan. A dispatch from Senator James K. Jones, the chair of the Democratic National Committee, informed him that “sufficient was known to make my defeat certain,” Bryan recalled in a memoir.

He composed a telegram to his Republican opponent, William McKinley. “Senator Jones has just informed me that the returns indicate your election, and I hasten to extend my congratulations,” Bryan wrote. “We have submitted the issue to the American people and their will is law.”

After Bryan, concession became a civic duty, performed by telegram or telephone call and then by public speech. Al Smith brought the concession speech to radio in 1928, and it migrated to television soon afterward.

Like other rituals, concessions developed a liturgy. The defeated candidate comes out first. He thanks supporters, declares that their cause will live on, and acknowledges that the other side has prevailed. The victor begins his own remarks by honoring the surrender.

Concessions employ a form of words that linguists call performative speech. The words do not describe or announce an act; the words themselves are the act. “The concession speech, then, is not merely a report of an election result or an admission of defeat,” the political scientist Paul E. Corcoran has written. “It is a constitutive enactment of the new president’s authority.”

Der grundsätzliche Verfassungskonsens, aus dem heraus beide Kandidaten oder Parteien sich solchen Gepflogenheiten unterwerfen, kommt selbst nicht aus der Verfassung natürlich.

Ich werd nicht alles zusammenfassen, aber die Analyse argumentiert, dass mit jedem Tag, den die Auszählung insbesondere der Briefwahlstimmen nach dem 2.November dauert, die Wahrcheinlichkeit für Verfassungskrisen aller Art steigt.

We are accustomed to choosing electors by popular vote, but nothing in the Constitution says it has to be that way. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the late 19th century, every state has ceded the decision to its voters. Even so, the Supreme Court affirmed in Bush v. Gore that a state “can take back the power to appoint electors.” How and when a state might do so has not been tested for well over a century.
…

The Trump-campaign legal adviser I spoke with told me the push to appoint electors would be framed in terms of protecting the people’s will. Once committed to the position that the overtime count has been rigged, the adviser said, state lawmakers will want to judge for themselves what the voters intended.

“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’ ” the adviser said. Democrats, he added, have exposed themselves to this stratagem by creating the conditions for a lengthy overtime.

“If you have this notion,” the adviser said, “that ballots can come in for I don’t know how many days—in some states a week, 10 days—then that onslaught of ballots just gets pushed back and pushed back and pushed back. So pick your poison. Is it worse to have electors named by legislators or to have votes received by Election Day?”

…

In Pennsylvania, three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign.

Das würde sich mit Notwendigkeit fortsetzen; im Effekt die Wahl zu einer Angelegenheit zwischen den Einzelstaaten reduzieren; dadurch das demokratische Prinzips der Bundesverfassung rückabwickeln. Es gibt keinerlei Verfassungsgarantie dieses Prinzips. Es ist nur einfaches Gesetz und Konsens.

Foley, the Ohio State election scholar, has mapped the ripple effects if Republican legislators were to appoint Trump electors in defiance of the vote in states like Pennsylvania and Michigan. The Democratic governors would respond by certifying the official count, a routine exercise of their authority, and they would argue that legislators could not lawfully choose different electors after the vote had taken place. Their “certificates of ascertainment,” dispatched to the National Archives, would say that their states had appointed electors committed to Biden. Each competing set of electors would have the imprimatur of one branch of state government.

In Arizona, Secretary of State Katie Hobbs, who oversees elections, is a Democrat. She could assert her own power to certify the voting results and forward a slate of Biden electors. Even in Florida, which has unified Republican rule, electors pledged to Biden could meet and certify their own votes in hope of triggering a “controversy or contest” that would leave their state’s outcome to Congress. Much the same thing almost happened during the Florida recount battle of 2000. Republican Governor Jeb Bush certified electors for his brother, George W. Bush, on November 26 of that year, while litigation of the recount was still under way. Gore’s chief lawyer, Ronald Klain, responded by booking a room in the old Florida capitol building for Democratic electors to cast rival ballots for Gore. Only Gore’s concession, five days before the Electoral College vote, mooted that plan.

In any of these scenarios, the Electoral College would convene on December 14 without a consensus on who had legitimate claims to cast the deciding votes.

Wer aber entscheidet dann, wer die wirksam gewählten Elektoren des electoral college sind?

This would be a genuine constitutional crisis, the first but not the last of the Interregnum. “Then we get thrown into a world where anything could happen,” Norm Ornstein says.

Jetzt würde die Sache im neugewählten Kongress weitergehen. Es kommt natürlich drauf an, wie die Wahl ausgeht. Was jetzt kommt zusammenfassen zu wollen ist zwecklos:

Pence, as president of the Senate, would hold in his hands two conflicting electoral certificates from each of several swing states. The Twelfth Amendment says only this about what happens next: “The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.”

Note the passive voice. Who does the counting? Which certificates are counted?

The Trump team would take the position that the constitutional language leaves those questions to the vice president. This means that Pence has the unilateral power to announce his own reelection, and a second term for Trump. Democrats and legal scholars would denounce the self-dealing and point out that Congress filled the gaps in the Twelfth Amendment with the Electoral Count Act, which provides instructions for how to resolve this kind of dispute. The trouble with the instructions is that they are widely considered, in Foley’s words, to be “convoluted and impenetrable,” “confusing and ugly,” and “one of the strangest pieces of statutory language ever enacted by Congress.”

If the Interregnum is a contest in search of an umpire, it now has 535 of them, and a rule book that no one is sure how to read. The presiding officer is one of the players on the field.

Foley has produced a 25,000-word study in the Loyola University Chicago Law Journal that maps out the paths the ensuing fight could take if only one state’s electoral votes are in play.

If Democrats win back the Senate and hold the House, then all roads laid out in the Electoral Count Act lead eventually to a Biden presidency. The reverse applies if Republicans hold the Senate and unexpectedly win back the House. But if Congress remains split, there are conditions in which no decisive outcome is possible—no result that has clear force of law. Each party could cite a plausible reading of the rules in which its candidate has won. There is no tie-breaking vote.

How can it be that Congress slips into unbreakable deadlock? The law is a labyrinth in these parts, too intricate to map in a magazine article, but I can sketch one path.

Suppose Pennsylvania alone sends rival slates of electors, and their 20 votes will decide the presidency.

One reading of the Electoral Count Act says that Congress must recognize the electors certified by the governor, who is a Democrat, unless the House and Senate agree otherwise. The House will not agree otherwise, and so Biden wins Pennsylvania and the White House. But Pence pounds his gavel and rules against this reading of the law, instead favoring another, which holds that Congress must discard both contested slates of electors. The garbled statute can plausibly be read either way.

With Pennsylvania’s electors disqualified, 518 electoral votes remain. If Biden holds a narrow lead among them, he again claims the presidency, because he has “the greatest number of votes,” as the Twelfth Amendment prescribes. But Republicans point out that the same amendment requires “a majority of the whole number of electors.” The whole number of electors, Pence rules, is 538, and Biden is short of the required 270.

On this argument, no one has attained the presidency, and the decision is thrown to the House, with one vote per state. If the current partisan balance holds, 26 out of 50 votes will be for Trump.

Before Pence can move on from Pennsylvania to Rhode Island, which is next on the alphabetical list as Congress counts the vote, House Speaker Nancy Pelosi expels all senators from the floor of her chamber. Now Pence is prevented from completing the count “in the presence of” the House, as the Constitution requires. Pelosi announces plans to stall indefinitely. If the count is still incomplete on Inauguration Day, the speaker herself will become acting president.

Pelosi prepares to be sworn in on January 20 unless Pence reverses his ruling and accepts that Biden won. Pence does not budge. He reconvenes the Senate in another venue, with House Republicans squeezing in, and purports to complete the count, making Trump the president-elect. Three people now have supportable claims to the Oval Office.

There are other paths in the labyrinth. Many lead to dead ends.

Was noch krasser ist, der ganze Verlauf ist durch wissenschaftliche Simulation getestet worden, und das Ergebnis ist nicht besser. Auch das kann man schlecht zusammenfassen:

I hoped to gain some insight from a series of exercises conducted this summer by a group of former elected officials, academics, political strategists, and lawyers. In four days of simulations, the Transition Integrity Project modeled the election and its aftermath in an effort to find pivot points where things could fall apart.

They found plenty. Some of the scenarios included dueling slates of electors of the kind I have described. In one version it was the Democratic governor of Michigan who first resorted to appointing electors, after Trump ordered the National Guard to halt the vote count and a Trump-friendly guardsman destroyed mail-in ballots. John Podesta, Hillary Clinton’s campaign chair in 2016, led a Biden team in another scenario that was prepared to follow Trump to the edge of civil war, encouraging three blue states to threaten secession. Norm-breaking begat norm-breaking. (Clinton herself, in an August interview for Showtime’s The Circus, caught the same spirit. “Joe Biden should not concede under any circumstances,” she said.)
If you are a voter, think about voting in person. If you are at low risk for COVID-19, volunteer to work at the polls.

A great deal has been written about the proceedings, including a firsthand account from my colleague David Frum. But the coverage had a puzzling gap. None of the stories fully explained how the contest ended. I wanted to know who took the oath of office.

I called Rosa Brooks, a Georgetown professor who co-founded the project. Unnervingly, she had no answers for me. She did not know how the story turned out. In half of the simulations, the participants did not make it as far as Inauguration Day.

“We got to points in the scenarios where there was a constitutional impasse, no clear means of resolution in sight, street-level violence,” she said. “I think in one of them we had Trump invoking the Insurrection Act and we had troops in the streets … Five hours had gone by and we sort of said, ‘Okay, we’re done.’ ” She added: “Once things were clearly off the rails, there was no particular benefit to seeing exactly how far off they would go.”

“Our goal in doing this was to try to identify intervention moments, to identify moments where we could then look back and say, ‘What would have changed this? What would have kept it from getting this bad?’ ” Brooks said. The project didn’t make much progress there. No lessons were learned about how to restrain a lawless president once a conflict was under way, no alternative moves devised to stave off disaster. “I suppose you could say we were in terra incognita: no one could predict what would happen anymore,” Brooks told me in a follow-up email.

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