Ex-federal prosecutor details ways Dems have prepared for MAGA’s 'Stop the Steal 2.0'

A dirty trick Trump used in 2020 won’t work if you know it’s coming

Democratic election lawyer and Democracy Docket publisher Marc Elias has been warning that if Harris wins, Trump and his MAGA allies will not accept defeat gracefully. And Elias has been busy planning for the possibility of Republicans refusing to accept the election results if Harris wins 270 or more electoral votes.

In an article published by the conservative website The Bulwark on Election Day, law professor and former federal prosecutor Kimberly Wehle examines Democratic efforts to fight "Stop the Steal 2.0" if Harris wins and Trump falsely claims the election was stolen from him.

"How wisely did we use those four years?" Wehle writes. "Anyone who follows the news won't be surprised to hear that Congress didn't go far enough to stop a steal. It made a few changes to the Electoral Count Act, which governs the process for certifying the Electoral College totals, but significant vulnerabilities remain."

Trump, Wehle warns, "has already been using election lies to lay the groundwork for a possible loss."

Wehle cites efforts to strengthen the Electoral Count Act as a plus but stresses that work still needs to be done.

"The Electoral Count Act now makes clear that only one 'certificate of ascertainment,' or slate, of electors is possible, and that it is 'conclusive' in Congress — so producing multiple slates in order to confuse things is a less appealing option for pro-Trump miscreants intent on stealing the 2024 election," Wehle explains. "Moreover, the multiple prosecutions of state-level participants in the 2020 fake electors scheme should be a deterrent for a redo of 2020. However, that doesn't close the book on this problem."

Wehle continues, "The GOP has made noise about reviving a constitutional theory they tried last round but didn't quite clinch in the Supreme Court: the independent state legislature theory, which claims that only state legislatures can ultimately administer elections under the Constitution. Courts can't, election administrators can't, and Congress can't. Under this theory, GOP-dominated state legislatures could separately meet and declare the winner of their states' Electoral College votes, overriding the popular vote and pre-existing state law. The Electoral Count Act now tries to avoid this by declaring that only the 'executive of each state,' i.e., the governor, can certify the Electoral College slates. But Trump could bring a constitutional challenge to this language, arguing that state legislatures have the final say."

According to Trump ally Steve Bannon, that’s exactly what Trump was counting on: “What Trump’s going to do, is just declare victory, right?” Bannon said before the 2020 election.

“But that doesn’t mean he’s the winner. He’s just going to say he’s the winner. The Democrats — more of our people vote early that count. Theirs vote in the mail. And so they’re gonna have a natural disadvantage, and Trump’s gonna take advantage of it. That’s our strategy. He’s gonna declare himself a winner.”

Bannon said this in October of 2020, before the election. And this is exactly what Trump did on election night.

Not incidentally, Bannon is advising Trump to do the same thing again tonight.

As Trump said on Election Day 2020: “We were getting ready to win this election. Frankly, we did win this election.” Wrong.

As Robert Reich explains, Trump’s nonsense claim that the votes counted earlier in the night were more legitimate than those counted later became the underpinning of his entire Big Lie, culminating in the January 6 attack on the Capitol.

It looks as if the 2024 election will be close. Early tonight, Trump is likely to appear to be ahead and again use that early lead to falsely claim victory.

This happens because Republican votes tend to be counted before Democratic votes.

It’s not magic. Votes are counted by precinct, and Democrats tend to live in more densely populated, urban precincts, while Republicans tend to live in more sparsely populated, rural ones. It just takes longer to count the votes in a precinct with a lot of people than in a precinct with fewer people.

In Georgia, for example, there are more than 300 times as many people living in Fulton County as in deep-red Glascock County. If Fulton County has 300 times as many ballots to count as Glascock, obviously Glascock is going to finish counting first.

In 2020, when numbers came in from counties like Glascock first, it made it look like Trump was leading in Georgia, when he really was not. It was a red mirage.

Also, Democrats are more likely to vote by mail, and mail-in votes take longer to count.

Anyone who follows elections knows about the red mirage and blue shift, as the former political director of Fox News, Chris Stirewalt, has testified: “In every election, and certainly a national election, you expect to see the Republican with a lead, but it’s not really a lead.”

But in 2020, Trump pretended that the blue shift was surprising and suspicious. He said: “We were winning in all the key locations by a lot, actually. And then our number started miraculously getting whittled away in secret.”

There was nothing miraculous or secret about it. But it’s easy to see why people who don’t know about the red mirage could be tricked into thinking that something unusual had happened.

According to Trump ally Steve Bannon, that’s exactly what Trump was counting on: “What Trump’s going to do, is just declare victory, right?” Bannon said before the 2020 election.

“But that doesn’t mean he’s the winner. He’s just going to say he’s the winner. The Democrats — more of our people vote early that count. Theirs vote in the mail. And so they’re gonna have a natural disadvantage, and Trump’s gonna take advantage of it. That’s our strategy. He’s gonna declare himself a winner.”

Bannon said this in October of 2020, before the election. And this is exactly what Trump did on election night.

Not incidentally, Bannon is advising Trump to do the same thing again tonight.

Wehle also fears the possibility of MAGA Republicans resorting to physical violence.

"Donald Trump increasingly teases the possibility of violence — but hopefully, between the National Guard and the various federal law enforcement agencies, any rioters wouldn't get near the Capitol if a repeat of the mob attack on the building were attempted," Wehle argues. "Still, the existence of mobs may yet intimidate Republicans on the fence."