The Proud Boys are a distraction from the real threat to American democracy

As Election Day nears, some commentators warn that the country is threatened by a “second Civil War” and that the election could “break America.” In one scenario, President Trump declares himself the winner on election night on the basis of in-person voting even though the mail ballots, which likely will favor Democratic presidential nominee Joe Biden, are still being counted. Far-rightwing groups clash with far-left groups in the streets, and America descends into chaos.

Trump reinforced the doomsday fears during Tuesday night’s presidential debate when he seemed to command the far-right extremist Proud Boys to “stand back and stand by” for further action. While no one should minimize the dangers of such racist hate groups, the Proud Boys are hardly a national underground militia ready to rise up at the president’s order, overrun the polling places and blow up the mail ballot collection boxes.  

According to the Anti-Defamation League, there are likely no more than several hundred Proud Boys, who are often outnumbered at demonstrations by counter protesters. To be sure, Proud Boys, some of whom promote white supremacist and anti-Semitic ideologies, have been convicted of violent acts. But if Trump commands the Proud Boys, he commands a rabble of belligerent imbeciles that any police department should be able to handle. 

Trump insisted in the debate that voting by mail is fraudulent, but he has no legal basis to stop the states from counting the mail ballots. According to a Washington Post survey of litigation over mail ballot voting deadlines and procedures, both Democratic- and Republican-appointed judges view Republican fraud claims skeptically, not least because the Republican lawyers cannot produce any evidence of mail ballot fraud.

So, focusing on the Proud Boys and their ilk misses the real threat to the democratic process, which is a much, much different group: the framers of the Constitution, who created the election doomsday machine known as the Electoral College.  

A realistic strategy for Trump’s legal team is not to try to stop the vote count directly, but to challenge or seek recounts of any initial vote tabulation in close races that favor Biden. Such challenges could delay a final tally until December 8, the so-called “safe harbor” deadline for states to choose electors to vote in the Electoral College, after which the electors cannot be challenged in Congress. 

If no electors are chosen in a given state as that date looms (because the vote recounts and challenges are still underway), then Article II of the Constitution gives Republicans a means to end run the popular vote. Under Article II a state’s legislature has the power to choose “in such Manner as the Legislature thereof may direct” the electors who will vote in the Electoral College (which meets on December 14).

The Proud Boys shouldn’t scare Democrats. They should be scared by the fact that in six top battleground states, Pennsylvania, Florida, Michigan, Wisconsin, Arizona and North Carolina, Republicans control both chambers of the state legislature.   

Would one or more of these legislatures invoke Article II to choose a Trump slate of electors even if it meant abandoning its state’s popular vote? That nearly happened in 2000 in Bush v. Gore, where a recount in several Florida counties was still underway as the state neared the safe harbor deadline for resolving disputes. The Republican majorities in the Florida State House and Senate were preparing pursuant to Article II to appoint a slate of electors pledged to George W. Bush when the Supreme Court halted the recount on constitutional grounds and effectively gave the presidency to Bush.

By borrowing from the Florida legislature playbook in Bush v. Gore, swing state Republican-controlled legislatures could pre-empt the final vote tally and send slates of Trump electors to give him a majority of the Electoral College. A conservative Supreme Court (with a newly-confirmed Justice Amy Coney Barrett) could affirm their power to do so.   

If that happens, it will be the second time in 20 years that the popular vote has been circumvented by a majority Republican-appointed Supreme Court to install a Republican president. Will we still be able to call ourselves a democracy? 

Gregory J. Wallance, a writer in New York City, was a federal prosecutor during the Carter and Reagan administrations. He is the author of “America’s Soul in the Balance: The Holocaust, FDR’s State Department, and The Moral Disgrace of an American Aristocracy.”  Follow him on Twitter at @gregorywallance.