Indeed. This is an argument I made, at much greater length, in my book Presidential Elections and Majority Rule. The problem is that we seem unable to engage in the structural reforms we need in order to make sure that the winners of elections actually reflect the majority view of the voters who cast their ballots. When will we ever learn? And will it be before it’s too late?

Benjamin Sevart, at the University of Wisconsin, has posted this Comment on SSRN. Here’s the abstract:

This Comment presents the first extensive academic analysis to argue that the writ of mandamus enables the federal courts to compel the Vice President of the United States to open Electoral ballots at the quadrennial joint session of Congress that certifies the result of the Electoral College or to convene the session. Mandamus is justified under current law because text, history, and common sense demonstrate that the Vice President’s duties are ministerial and not discretionary, and the joint session uniquely paralyzes Congress, withdrawing all of its usual tools to secure compliance with the law.

The certification of the 2020 Presidential election was nearly the worst constitutional crisis since the election of 1876, if not the Civil War. The nation narrowly avoided catastrophe, in large part because Vice President Michael Pence refused to join President Donald Trump’s massive conspiracy to subvert the Electoral College and usurp the presidency. This Comment is the first in the academic literature to identify and evaluate a specific legal mechanism for the federal courts to ensure that the lawful transfer of power need not rest on the Vice President’s integrity alone. 

While the courts may be reluctant to intervene in such a fundamental constitutional dispute, they will find no off-ramps in the scenario presented here. All of the Vice President’s justiciability objections will fail. The courts will face the question squarely on the merits, and they may face it soon. Trump could conceivably be the one seeking mandamus against Vice President Kamala Harris at the upcoming certification. 

The question is not just whether to issue mandamus against the Vice President. Nor is it whether to trigger a constitutional crisis. The question is whether to sit one out, or else to affirm that the United States of America remains a nation of laws, and not men.

Arizona Republic provides a comprehensive analysis of the indictment:

“A grand jury has charged 11 Arizona Republicans and seven others in a scheme to keep Donald Trump in the White House by falsely certifying he won the state in 2020, though voters in the Grand Canyon State narrowly favored Joe Biden. …

“The names of seven other individuals are redacted from the grand jury indictment, suggesting a broader scope of Mayes’ case. …

“The grand jury’s decision could levy criminal consequences for an unprecedented plot to subvert the will of Arizona voters, one that has ruptured faith in elections and fueled election conspiracies that have taken root in GOP politics in the state. …

Arizona actually had two different groups of illegitimate GOP electors. The indictment made public on Wednesday names the slate that included more prominent Republican figures, and some of whose involvement has already been well established by the Congressional committee investigating the violent break-in at the U.S. Capitol on Jan. 6, 2021.”

The video is now posted of Rick’s important lecture on Combatting Political Extremism. I encourage everyone who did not have a chance to see it live to watch the video. It’s an excellent summary of the institutional reforms that would ameliorate the problems afflicting American politics and governance currently.

In the Washington Post, adapted from his forthcoming book. His essay is eloquent. Here’s some excerpts:

A healthy republic would not be debating whether Trump and his followers seek the overthrow of the Founders’ system of liberal democracy. … As one 56-year-old Michigan woman present at the Capitol on Jan. 6, 2021 explained: “We weren’t there to steal things. We weren’t there to do damage. We were just there to overthrow the government.” …

Trump … has explicitly promised to violate the Constitution when he deems it necessary. That by itself makes him a unique candidate in American history and should be disqualifying.

This kind of open challenge to our democracy was never meant to be addressed by the courts. As the Founders well understood, you don’t serve a subpoena to a would-be tyrant and tell him to lawyer up. Nor was it meant to be addressed by the normal processes of democratic elections. They knew, and feared, that a demagogue could capture the allegiance of enough voters to overthrow the system. That was why they gave Congress, and particularly the Senate, supposedly more immune from popular pressures, the power to impeach and remove presidents and to deny them the opportunity to run again — and not simply because they violated some law but because they posed a clear and present danger to the republic. After Trump’s attempt to overthrow the government in 2020, Congress had a chance to use the method prescribed by the Founders in precisely the circumstances they envisioned. But Senate Republicans, out of a combination of ambition and cowardice, refused to play the vital role the Founders envisioned for them. The result is that the nightmare feared by the Founders is one election away from becoming reality.…

Americans … know he would not respect the results of fair elections if he loses, which is the very definition of a tyrant.

So, why will so many vote for him anyway? For a significant segment of the Republican electorate, the white-hot core of the Trump movement, it is because they want to see the system overthrown. …

Many of Trump’s core supporters insist they are patriots, but whether they realize it or not, their allegiance is not to the Founders’ America but to an ethnoreligious definition of the nation that the Founders explicitly rejected. …

If the American system of government fails this year, it will not be because the institutions established by the Founders failed. It will not be because of new technologies or flaws in the Constitution. No system of government can protect against a determined tyrant. Only the people can. This year we will learn if they will.

While I share much of Kagan’s diagnosis of the danger that Trump and his followers present to our nation’s system of “liberal democracy,” I think Kagan goes too far in depicting the Founders and the Constitution they created as an ideal from which we have fallen and to which we must return. Conversely, one need not go as far as Kermit Roosevelt does in arguing that we must repudiate the Founders in favor of resting our collective national creed solely on the beliefs of Lincoln and the Republican Reconstruction that followed the Civil War. Instead, my view is that if we are going to see a way out of our predicament, it will because we recognize that the Founding and its Constitution, reflecting important Enlightenment values that are worth sustaining and nurturing as we continue to seek human progress, were important respects deeply flawed, including in the institutional structures of democracy that they established. Unlike Kagan, I don’t think we can rely on a hope that the public will be sufficiently virtuous to reject would-be tyrants. Instead, like Madison himself, I think we need to be the architects of institutional arrangements that provide for the ongoing operation of collective self-government given the limited amount of civic virtue that necessarily will exist in society. The problem in my view is that our existing institutions are no longer adequate for the level of civic virtue we currently have, and thus we need institutional reforms (along with efforts to re-cultivate more civic virtue) to bring our system into Madisonian equilibrium. In this sense, Madison had the right idea, but he did not implement it correctly. As good Madisonians, we need to repair the serious flaws in the system he and the other Founders created. I think Kagan regrettably misses this key point.

This Washington Post summary of yesterday’s testimony highlights how the prosecution is attempting to turn a potential federal campaign finance violation into a state-law criminal offense. The “secret pact” to influence the election through a “catch-and-kill” scheme to suppress stories unfavorable to Trump would not be illegal, given the First Amendment, unless it amounted to some sort of unlawful financial contribution to Trump’s campaign. And even if it were, there are all the legal issues associated with tying it to state-law crimes. So what The Washington Post describes as potentially “significant damage” to Trump from David Pecker’s testimony may ultimate depend on legal rulings down the road on the implications of that testimony under the applicable federal and state laws.