In a polarized America riven by bitter protests and rioting, the presidential election veers off the rails and into chaos. As Election Day nears, Donald Trump, Joe Biden, and others jockey for advantage. In November 2020, the election enters uncharted territory after deadlocks in the Electoral College and Congress and a bizarre reprise of Bush v. Gore 2000 in the U.S. Supreme Court. Dark forces and strange turns of events leave Americans wondering who their next president will be – and whether it will be a black woman.

By Dan Lawton

Part  

On November 3, 2020, John Ducey, eighty-five years old, rose at 5:30 a.m. in his bedroom in Long Beach, California. After a quick shower and some breakfast, he dressed, fed the cat, and walked down the street to his polling place. Election Day had always held some excitement for him. Today it still did.  

John was a lifelong Republican. But the Republican president, Donald Trump, seemed crazy, equal parts megalomaniac and buffoon, a trust-fund baby masquerading as self-made tycoon, a reality-TV star-turned-dilettante in government, a serial skirt-chaser, tax cheat, attention whore, and general horse’s ass. The challenger, Joe Biden, had plenty of experience, and he had given a nice speech at the convention. But seemed dopey and confused sometimes. He had a dynamic young running mate, Kamala Harris, a young U.S. senator and former prosecutor from Oakland. But John rarely cared who the running mate was. When John was a kid during the 1940s, someone had likened the veep’s role to a bucket of warm piss, an opinion John generally shared.

John checked in, signed his name, went to the little booth like he always did every election, primary and general, filled in the little ovals with black ink, folded up his ballot, and brought it back to his friend Peggy Malone. Peggy had been John’s neighbor for sixty years. John flirted with Peggy a little, thanked her, and walked out. He meant to go home, drive to the Cal State Long Beach campus, do his usual three-mile walk, and come back home to practice his saxophone for a couple of hours. John, a widower, was a retired family doctor. Now his passion was playing the saxophone. Since the coronavirus had hit, John had been playing neighborhood concerts every Saturday at 5 p.m., opening his living room windows and playing George Gershwin and Ray Charles and Duke Ellington numbers for anyone who happened by. People brought lawn chairs and wine and plastic cups and sat and listened.

John figured he would turn on the TV around 7 p.m. to watch the returns in front of a TV tray and some Chinese takeout, as he usually did on the evening of each Election Day.

This Election Day would be a little different than any that had gone before.

Since the late seventies, people in California had been mailing in ballots in presidential elections with no excuses required, but never in such high numbers as this year. Some people were scared of the coronavirus. Others were wary of voting in person during a year marked by riots and masses of surly police patrolling the streets. Seventy-five percent of the voters in the country had already voted by mail, most of them weeks earlier.

State and local election officials had done their best to keep up with the staggering volume. But, in August 2020, during one of his purple fits, Trump had slashed $25 billion from the Postal Service’s budget. Congress had tried to help, but the ensuing layoffs meant fewer postal workers to handle and sort the truckloads of ballots that came flowing out of New York and Michigan and California and a lot of other places. In some post offices, the skeleton crews were struggling with equipment breakdowns.

The heaviest volume of ballots, of course, came from California. Voters like John who liked going to the polls were aging out. In October, the Secretary of State’s office had said that sixteen million voters there had voted by mail already.

Political junkies who watched the TV coverage during the day saw an unfolding fiasco. Long lines of voters snaked around blocks in Detroit, Jacksonville, Los Angeles, Albuquerque, and other cities. Shouting matches erupted between polling station workers and voters who hadn’t brought their IDs. Some poll workers, older folks who were a little hard of hearing, had a hard time understanding the irate voters who had been on their feet all day and still hadn’t voted.

In California, things were a mess. Postal service workers had started a wildcat strike, the first one since 1970, in October. They had locked and abandoned dozens of trailers and vans stuffed with mail-in ballots in Fresno and Bakersfield and Alameda and San Diego and a dozen other places. Vandals and outlaws had set some of the vehicles on fire or hot-wired them and driven off. The day before Election Day, one of them had driven a Postal Service truck off the Coronado Bridge in San Diego, in an apparent suicide. The truck had plunged straight to the bottom of San Diego Bay, where the corpse of the driver and the crates of ballots now lay soaking up seawater.

Months earlier, Biden and Trump had both planned for a contested election and a reprise of Bush v. Gore, the epic lawsuit that had wound up at the Supreme Court and delivered the White House to George W. Bush in 2000. In private, Roger Stone, Trump’s Nixon-worshipping confidante and convicted perjurer, liked telling the president it would be Bush v. Gore on steroids.

Biden and Trump each had lawyered up like crazy.

When it came to lawyers, Donald Trump hired only the best, or so he said.

His chief of staff, Mark Meadows, wondered about that sometimes. Meadows was an affable former congressman and real estate developer, a handsome North Carolinian with a nice head of salt-and-pepper hair, Trump’s fourth chief of staff in four years. To Meadows, Trump’s ever-morphing stable of lawyers had been a mixed bag. One of them, Michael Cohen, had attended the worst law school in America -- Meadows couldn’t remember the name of it -- and just finished a stretch in prison for fraud and tax evasion. Rudy Giuliani was a big name and had been a hero after the September 11 attacks. But now, in 2020, Rudy was half in the bag a lot of the time, even while trying to get his face in front of the cameras at Fox News and anyone else who would put him on television. The impeachment defense team of Ken Starr, Alan Dershowitz, and Pat Cippolone, had been fine. As ever with Trump, there had to be a hot blonde in the mix. That was Pam Bondi. To date, all of them had gone unpaid.

Dershowitz was still calling the White House every week about his invoices. No one ever called him back.

In the Oval Office late one night back in June, Trump had sat slouched in the fat maroon leather swivel chair behind the Resolute Desk, brooding, looking at his son-in-law, Jared Kushner, and Meadows, who sat across from him. The thick windows and heavy golden drapes muted the chants of Black Lives Matter and No Justice, No Peace of the protesters massed outside on Pennsylvania Avenue.

The odor of McDonalds fast food pervaded the air. Meadows spied a Big Mac and jumbo order of golden french fries congealing, uneaten, on the desk.

Trump wanted to talk about recruiting a new legal team to spearhead a court strategy which would return him to the White House for four more years. With a black Sharpie, he had scrawled some lawyers’ names on a piece of paper, names he’d heard on TV or here and there down the years. Meadows eyed the list, then looked up at the president.

One name belonged to Dickie Scruggs, a plaintiffs’ class action lawyer from Mississippi. He had been disbarred years ago for trying to bribe a judge.

“None of them fit the bill, Mr. President,” said Meadows. “What we need is a Supreme Court specialist. Someone who’s in front of the Justices all the time. Ted Olson, somebody like that. He was Bush’s lawyer in 2000. That one turned out all right for Bush, sir, if you recall.”

Trump sighed, sat back in his chair and glanced at the ceiling. History bored the piss out of him.

Meadows studied the grain of the Resolute Desk. Down the years, dark orders had gone out from this desk, Meadows thought -- B-52s sent rumbling down runways to drop tons of bombs on North Vietnam, U.S. arms sold to terrorists in return for American hostages, Army troops secretly ordered to invade Cambodia, IRS audits of hostile journalists set in motion, votes on the Civil Rights Act pried out of married white Southern congressmen who would rather not see LBJ let it slip they were screwing their secretaries in the afternoons in cheap motels in Arlington.

Trump stood up and pushed his chair aside. Then he leaned forward over the desk, his enormous gut bulging against it, and planted his hands on the immaculate polished wood surface.

“Fuck that, Mark,” the president said. “They’re all part of the swamp. No more establishment queens! And no more hourly rates! They kill you with the hourly rates! I want Brian Panish. Ever heard of him?”

Brian Panish?

Kushner, his eyebrows arched in confusion, shot a look over at Meadows.

“Who the hell is Brian Panish,” said Kushner, warily.

“He’s a plaintiffs’ lawyer from California, Jared,” Meadows said. “He does death and catastrophic injury cases. He’s a big name in that field. But I haven’t heard that he’s got Supreme Court experience. How is he the right guy for this, Mr. President?”

Trump rolled his eyes. He had to yell at Meadows for a while.

“Mark! He got the biggest verdict in the history of the courts in a personal injury case! Almost five billion dollars, against GM, exploding fuel tank case. Not exactly chump change. That I can tell you.”

Meadows had heard of the verdict all right. It had made the front page of The Wall Street Journal twenty years ago. But what did Brian Panish know about constitutional law or Supreme Court practice?

“Yes, sir,” said Meadows. “Did he wind up taking that case to the Supreme Court? How does he make sense for this?”

Trump balled up his fists and slammed them down on the wood, pow-pow! Kushner was rigid, sitting at attention, like a scared freshman on his first day in high school.

“Don’t you get it, Mark five billion? Think outside the box a little! He knows how to stand up and ask for the moon with a straight face! He asked a jury to give him five billion dollars and they gave it to him! Like his client deserved that amount of money! Come on! This is our guy!”

Kushner cleared his throat. He didn’t like disagreeing with his father-in-law. But he didn’t like being blamed for things going wrong either. Trump had never let Kushner forget the Tulsa rally debacle. What if Panish or someone else crashed and burned at the Supreme Court because he wasn’t the right lawyer for the job?

“He’s never been to the Supreme Court, Mr. President,” Kushner said. “If you died in a flaming train wreck and the insurance company didn’t want to pay, he’d be our man. But . . .”

“But he’s got balls like church bells,” Trump bellowed, finishing Kushner’s sentence for him. “That’s what I want! Balls like church bells! He can go to school on the Supreme Court stuff, or sub it out. How hard can it be? He rammed it up the ass of General Motors, for Christ’s sake!”

Meadows knew what was coming next, the president’s favorite oral punctuation mark, that I can tell you.

“That I can tell you,” the president concluded.

“Yes, sir,” Meadows said meekly.

After Meadows and Kushner had slunk away, Trump picked up the phone.

“Call Dershowitz,” he told the switchboard operator. “Tell him I’m having his bills audited. Five hundred hours for the impeachment thing! At $1000 an hour! It’s bullshit!”

He slammed the phone down, bam!

If I drank booze, he thought, this is where I would have a drink.

Elsewhere in the capital, throughout the summer and into October, the cream of the Supreme Court bar sat by their smartphones and tablets, waiting for a call from the White House. Like every other lawyer in America, they felt a creeping sense of dread when their phones didn’t ring. No one called.

Joe Biden didn’t want any of them either.

“Forget those guys,” Joe Biden had told Kamala Harris back in August on the night before the convention. Biden and Harris were lawyers themselves, though neither one had a single day of experience in private practice. Harris gave Biden a quizzical look.

“I want an outsider, a big name, a smart guy,” Biden said. “How about somebody from California? You’re from California. Do you know anyone good out there?”

Harris had heard of a trial lawyer, Morgan Chu, from Irell and Manella in Los Angeles. He was said to be the best intellectual property lawyer in America.

“I like Morgan Chu,” Harris said. “They don’t come any smarter. He’s a superstar. And I think he’s got Supreme Court experience. We should want that. That’s where this thing will wind up.”

“Chu,” said Biden. “Never heard of him. He’s Asian, I guess?”

Harris grimaced a little, then nodded.

“I like it,” Biden said. “If this thing goes all the way, we’re going to be arguing about the Electoral College numbers. We’ll have an Asian guy up there talking about math!”

When Morgan Chu’s office phone rang the next morning, it was 6:30 a.m.

Chu was dressed nattily in his customary natty red bow tie and blue blazer. The early morning hours were a good time to tend to endless river of emails and sip a fresh cup of coffee in peace. Chu loved that hour of the morning, before the phone started ringing incessantly and the back-to-back Zoom calls and court hearings got going.

“Hello, this is Morgan Chu,” he said.

“Mr. Chu, good morning,” said the voice.

“Yes? Who’s this, please?”

“This is Kamala Harris. Joe Biden and I would like to hire you and your team to handle a case on our behalf in case the upcoming election goes sideways. Would you feel comfortable taking it on?”

Chu had met Kamala Harris at a fundraiser in downtown L.A. years ago, when she was running for Attorney General.

“Tell me more about it,” Chu said cautiously.

His assistant Judy came in, to tell him he had a call. Chu waved her off and silently mouthed can you take a message, I’ll call him back.

On Election Night, as John Ducey watched, CNN called North Carolina for Biden just after 9 p.m. Pacific time. The Tar Heel State had put Biden over the top in the Electoral College, with a projected 270 electoral votes to Trump’s 218.

There was still some more counting to do before it became official. But it was over. Joe Biden was going to be the forty-sixth president of the United States.

From coast to coast, wild celebrations erupted, in streets and parks and bars and living rooms. There were protests too, and some rioting and vandalism. The network anchors could hardly keep up with it all, bouncing from Portland to Detroit to New York to Birmingham and other cities where people full of fear and dread and joy and ecstasy collided with each other.

But, just like in 2000, it wasn’t over.

In the week following Election Day, lawyers were in courthouses all over the place. They were demanding temporary restraining orders and expedited injunctions, appealing or applauding or lamenting the latest rulings, decrying the threat to democracy posed by this or that ruling, baying and preening and posing for the TV cameras in what looked to be a brewing constitutional crisis. The pundits were saying the whole thing could wind up at the U.S. Supreme Court.

In Long Beach, alone in his living room, with his cat for company, John Ducey watched the coverage each night. It’s like 2000 all over again, he thought, only way more violent and weird.

There were peaceful pro-Trump protests aplenty but there was looting and rioting and fighting and assaults on police too, in Indianapolis and Portland and Los Angeles and Albuquerque and Austin and Baton Rouge and Chicago and other places. Everywhere, statues were being pulled down, set on fire, urinated on, defiled by bandanna-wearing young men who unzipped with one hand and waved a fist or middle finger with the other, and spray-painted with every kind of disgusting writing that you could never show on network television or print in a newspaper. Down came Frederick Douglass, Douglas MacArthur, Susan B. Anthony, Ulysses S. Grant, Harriet Tubman, Jefferson Davis, Martin Luther King, Jr., Winston Churchill, Fr. Junípero Serra, Mark Twain, Booker T. Washington, Ronald Reagan, Harvey Milk, Harriet Beecher Stowe, César Chavez, Knute Rockne, Sitting Bull, Malcolm X, George Washington, Vasco de Gama, Rosa Parks, General George Armstrong Custer, Elizabeth Cady Stanton, B.B. King, Ferdinand Magellan -- on and on it went, the finest work of every bronze sculptor of his day treated like it was a monument to Hitler or Stalin, desecrated by jerks who knew as much about history as they did about sculpting, which was nothing.

In Golden Gate Park in San Francisco, some guys pulled down a statue of Robert Emmet, a young Irish patriot whom the British had hanged after a sham court martial in 1803, dragged it into a bed of tulips, doused it with lighter fluid, set it alight, and left it there face down. The same thing happened to Lou Costello’s statue in Paterson, New Jersey. Costello’s stand-up routine, “Who’s on First,” was still beloved by millions of older Americans.

What Robert Emmet and Lou Costello had to do with anything, no one could say.

In Venice, California, the disgraced lawyer Michael Avenatti sat dejected on a sofa, watching the chaos on TV. In 2018, Avenatti, a brash, Trump-hating loudmouth, had wanted to run for president himself. Now he was de-horsed, a convicted felon, wearing an ankle monitor, with two more criminal trials ahead. He was out on bail and broke and suspended from the bar. Judge Jim Selna had let him out of jail on a $1 million bail bond and set strict conditions for his release, including banning Avenatti from using the internet. Before his stupendous fall, Avenatti had been a prodigious Twitter user, with nearly a million followers.

Today, Avenatti couldn’t resist. A friend had slipped him a prepaid smartphone.

The Republic is still at risk, Avenatti tweeted. Donald Trump will not go quietly. The courts must do the right thing so that this monster can be removed from the Oval Office . . .

Two hours later, Selna revoked Avenatti’s bail. The marshals knocked roughly at the door. Avenatti had already packed a toothbrush and some underwear. He went quietly.

Late that night in Philadelphia, Joe Biden, doing his best to seem sprightly, strode to a microphone on a stage decorated with masses of American flags. His wife, Jill, stood off to the side, wearing her best politician’s-wife smile. A couple of steps behind Biden, Kamala Harris stood at attention. Trump hadn’t conceded but it was time to declare victory at last. There was no audience, of course, except for a gaggle of masked-up stagehands and campaign staff. A couple of them helped Biden to his mark, made sure his lav mic was on, and receded into the darkened wings.

A makeup artist applied the last touches of pancake to Joe Biden’s kindly wrinkled old face and poofed up the reforested thatch of white hair on top of his head. She walked off, leaving Biden alone at the lectern.

The director counted Biden in.

“Five, four, three, two, . . .”

Biden let a beat go by. He looked straight into the lens, visualizing, pretending the dark glass orb was the eye of a pretty girl at Claymont Academy in 1960 and he was trying to sweet-talk her outside the locker room on a crisp fall night in the middle of a throng of happy fans after a shower and a big win on the football field.

In the little dining room off the Oval, the only light came from the bank of television monitors that splashed reds and blues and whites on everything.

“This guy, Sleepy Joe,” Trump said. “A very low-IQ individual. Does he even know what state he’s in today?”

“The state of confusion,” said Jared Kushner. Everybody laughed except Mark Meadows.

Meadows had always been uncomfortable with suggestions of Biden’s senility. There had been times when he, Meadows, wondered whether Trump was losing his own marbles or would be the first U.S. president to say shithole or douchebag into a hot microphone on live TV.

“I don’t know, sir,” said the chief of staff. “He’s gaffe-prone all right. But he's been pretty steady lately. They don't let him go off the script."

“You watch, Mark,” said the prez. “He’ll put his foot in it at the worst possible moment, forget his wife’s name onstage, something like that.”

During the debates, each man had struggled at times. But Biden had fared badly in the second debate, when asked a question about American policy on China. He spilled water on himself and referred to the Chinese president as Ho Chi Minh and then tried to recover with a Charlie Chan allusion and then a rambling anecdote about his favorite Chinese takeout restaurant in D.C. He was very fond of their kung pao chicken, he said. Trump had rolled his eyes theatrically, playing to the TV audience, as if to say, Charlie Chan? Really?

After it was over, Biden had come offstage to embrace Jill, his wife. As he exited the brightly-lit stage his eyes didn't adjust right away and he grabbed a female stagehand and kissed her on the lips before realizing Jill was a step behind trying to catch up to him. A camera caught Jill’s face just as Biden planted his lips on the startled young woman’s. The camera mercifully cut away just before Jill dropped her head and started weeping.

But that had been in September. This was now.

“My fellow Americans,” Biden began, grandly.

He flashed his reflexive fake pearly smile, a big toothy smile he’d smiled a million times at county fairs and on the Senate floor and on airport tarmacs all over the world.

“Today we stand at the threshold of history, on the brink of a transformation of our beloved America.”

Even when Biden tried to be Churchillian, it sounded canned, like street-corner pol bullshit a second-rate speechwriter had recycled from an old Mike Dukakis speech that the audience had forgotten five minutes after Dukakis gave it in 1988.

“I want to thank my lovely wife, my partner, my best friend. She’s right here by my side, as she has been throughout our marriage.”

Biden made a half-turn toward stage left and extended his arm toward Jill Biden.

A camera man, following the script, pulled back for a wide shot, following Biden’s lead. Jill stood there, happy, proud, ramrod-straight, in a white Brandon Maxwell dress, looking every inch the former model she was, beaming, a reincarnation of Lady Bird Johnson and Pat Nixon and Joan Mondale and Nancy Reagan all rolled into one. Her eyes brimmed with tears of joy and pride.

Joe Biden waited a beat, to let the image sink in for all the good people watching at home and the men and women serving overseas and even that rat bastard Donald Trump.

“My wife, uh . . .”

Joe Biden looked back into the lens, but a deer-in-the-headlights look had replaced the big smile.

The words had been right in front of him, beaming bright from the twin Teleprompters just a few feet away: JILL BIDEN, WITHOUT WHOM THIS SACRED MISSION, THIS PARTNERSHIP THAT UNITES US ALL TODAY, NEVER COULD HAVE HAPPENED. MY INSPIRATION, MY BEACON, MY ROCK.

The screens flickered for a moment. Then the words disappeared, leaving two blank blue screens.

Kamala Harris heard a commotion backstage. The producers and engineers were scrambling and cussing in hoarse angry whispers and trying to get the Teleprompter screens back up.

No problem, Joe thought. A little ad lib, until they get it back up.

In a flash, Biden remembered Bill Clinton had once ad libbed his way through part of the State of the Union address on live TV after the same thing had happened to him. I can do it too.

“She’s been the best partner a fella like me could ever hope for. She’s going to be our new First Lady. I’m talking, of course, about, uh . . .”

Kamala Harris’ own smile had faded too. Harris had long dreaded this moment, when Joe Biden, the future President of the United States, forgot his wife’s name or who the president of Russia was during a major address to the nation even as she was standing right there.

Come on, Joe, you can do it, she thought. Jill. Jill.

Just then, Brian Panish and his team weren’t watching. They were in their offices on Santa Monica Boulevard, putting the finishing touches on their injunction papers. The afterglow of the sunset still lingered just above the horizon, glowing a faint orange through the light brown pall of L.A. smog that hovered just offshore. There was a big TV monitor mounted high on the wall in a conference room. Someone had muted the audio. “JOE BIDEN ELECTED PRESIDENT OF THE UNITED STATES,” said the crawl. The faces of Wolf Blitzer, Dana Bash, and John King rotated in and out. Their freshly-scrubbed, perfectly made-up faces looked nothing like they had that night in 2016, when they couldn’t hide their dismay and disgust at Hillary Clinton’s shocking defeat. Tonight they all looked happy and content.

Brian Panish had replaced the framed photos mounted on the wall of his office with a giant, floor-to-ceiling whiteboard.  The scrawling which covered it looked like a Bill Belichik game plan written with red and blue Sharpies.  It was a decision tree, the strategy for winning the election in the courts.  Panish had created it over several weeks with the help of a small team of experts and scholars he had hired and paid by the hour at his own expense to educate him on the niceties of constitutional and election law.

Panish pushed the key that triggered the electronic filing of his motion for temporary restraining order and preliminary injunction in the U.S. District Court. This will fry their bacon all right, he thought, echoing a favorite aphorism of his high school football coach.

Panish smiled to himself.  The papers looked good, he thought.  His team of law professors had written drafts loaded with highfaluting jargon and academic mumbo-jumbo.  Panish had distilled it all into his favorite form of legal expression:  plain English in short punchy sentences that were easy to understand whether you were a juror or a federal judge or a bartender in Culver City.

“California’s electoral process is fatally flawed,” said the opening line of Panish’s brief. “The Postal Service has failed to deliver millions of ballots to county registrars. Its illegal strike has idled the engine of American democracy -- the orderly counting of paper ballots which express the will of the voters. Even now, outlaws are destroying trailers loaded with these ballots.

“The Fourteenth Amendment guarantees voters everywhere due process of law and the equal protection of the laws. This guarantee means something in a presidential election. The Supreme Court’s landmark decision in Bush v. Gore taught us that twenty years ago. If that precedent means anything today, it means the court must enjoin California’s secretary of state from declaring a winner in an election whose outcome Americans will never truly know. California’s 55 electoral votes belong to no one.”

At the hearing that Friday, Judge Terry Hatter took the bench at 9 a.m. Across the country, an audience of millions was watching the live feed on the TV networks.

Forty-one years after his ascent to the federal bench in 1979, Hatter, the first African-American to serve as chief judge of the district, remained a formidable presence in the courtroom. One of the last Jimmy Carter appointees still alive and wearing a robe, he still had an agile, curious mind and infinite patience. At an age when many judges had long since died or quit, he still loved cutting the Gordian knot of a vexing legal problem. As he took the bench, everyone was already standing before the bailiff even said, “All rise, please.”

Hatter nodded at the attorneys. Brian Panish rose to take his place at the lectern, but Hatter waved him away.

“I’d like to hear from Mr. Chu first,” said the judge. “Mr. Chu, I think you will have the laboring oar today. The court is inclined to grant the temporary restraining order and set this matter over for an injunction hearing.”

A gasp went up in the courtroom.

“There will be order in the court,” said Hatter, glaring at the gallery over his reading glasses. “Order.”

Hatter now read from a piece of paper. His law clerk had typed it up for the judge and handed it to him back in chambers.

“The court has read all of the papers, and appreciates the speed and energy devoted to this weighty matter by all counsel,” said the judge. “No party disputes that at least four million mail-in ballots have gone astray due to an illegal strike by the employees of the U.S. Postal Service. These ballots may never be recovered and counted. Neither California’s state government, the court, nor the people of this state can have any confidence that the process designed for the orderly selection of California’s electors, and, in turn, the president of the United States, has functioned properly in this instance. Voters have the right to an orderly process. They also have the right to the equal protection of the laws. These rights are at grave risk today.

“The court, as well as your clients, gentlemen, cannot pretend to know the degree to which those rights were violated last Tuesday, nor who is entitled to claim California’s 55 electoral votes.”

Inside Morgan Chu, who now stood at the lectern, a neural alarm went off. Chu waited for the judge to pause so he could interject something, maybe sidetrack the train that was gaining speed and hurtling toward his client’s case, tell Hatter he was wrong and that the federal courts shouldn’t inject themselves into national presidential elections and that Panish’s logic was superficial and flawed. But Terry Hatter didn’t look up at him.

A feeling dawned on Chu that every other lawyer in America had felt at one time or another: whatever he was going to get to say was going to be for the record on appeal and wouldn’t change the judge’s mind. He might as well have been a mannequin standing there. Judge Hatter kept on reading.

“The Secretary of State, Alex Padilla, is hereby enjoined from certifying the results of the election held on November 3, 2020, to the Electoral College or to any other agency or body,” the judge said. “In California, the results of this election are null and void.”

Subtracting California’s 55 electoral votes from Joe Biden’s total of 270 left him with 215, three less than Trump's 218.

No one had won. Not yet.

In the west wing of the White House, there was jubilation. Wild cheers went up in the offices and corridors. They were audible all the way down in the warren of media cubicles in the basement. In the little dining room off the Oval, Trump laughed out loud, something he rarely did.

“Good old Terry Hatter!” he cried. “I love the bastard! That I can tell you!”

Ivanka and Jared came in for hugs, which Trump rarely gave them or anyone. No one seemed to know where the First Lady was.

Mark Meadows kept his gaze on one of the TV monitors. “COURT RULING THROWS PRESIDENTIAL ELECTION INTO HOUSE OF REPRESENTATIVES,” read the crawl. Wolf Blitzer, Dana Bash, and John King all were trying and failing to conceal the same sadness that had crept into their faces on Election Night in 2016, when Trump had stunned everyone, including himself, by winning the election.

Meadows was thinking ahead. Under the twelfth amendment, each state’s delegation to the House got a single vote, whether it was Rhode Island’s or New York’s. A simple majority, 26 out of 50, would carry the day. Can we get to 26? Meadows wondered. He started dialing his cell phone.

There was precedent for the situation. But no one had been alive when it had last happened, in 1824, when the House had given the White House to John Quincy Adams even after Andrew Jackson had won majorities in the Electoral College and popular vote. There were constitutional law scholars and Harvard law professors who had written thousands of pages about the legal niceties of contingent elections in the House. The footnotes numbered in the hundreds of thousands. Who had time to read them all? Or to watch Alan Dershowitz and Jeffrey Toobin and a hundred other pompous TV lawyers blather on about it on the cable networks?

For the next four weeks, the war for 26 votes in the House of Representatives went on nonstop -- by phone, in person and to hell with masks, by Zoom. 

Copyright © 2020 by Dan Lawton. All rights reserved. 

➽ Dan Lawton is a lawyer and writer in California.

Unprecedented (I)

In a polarized America riven by bitter protests and rioting, the presidential election veers off the rails and into chaos. As Election Day nears, Donald Trump, Joe Biden, and others jockey for advantage. In November 2020, the election enters uncharted territory after deadlocks in the Electoral College and Congress and a bizarre reprise of Bush v. Gore 2000 in the U.S. Supreme Court. Dark forces and strange turns of events leave Americans wondering who their next president will be – and whether it will be a black woman.

By Dan Lawton

Part  

On November 3, 2020, John Ducey, eighty-five years old, rose at 5:30 a.m. in his bedroom in Long Beach, California. After a quick shower and some breakfast, he dressed, fed the cat, and walked down the street to his polling place. Election Day had always held some excitement for him. Today it still did.  

John was a lifelong Republican. But the Republican president, Donald Trump, seemed crazy, equal parts megalomaniac and buffoon, a trust-fund baby masquerading as self-made tycoon, a reality-TV star-turned-dilettante in government, a serial skirt-chaser, tax cheat, attention whore, and general horse’s ass. The challenger, Joe Biden, had plenty of experience, and he had given a nice speech at the convention. But seemed dopey and confused sometimes. He had a dynamic young running mate, Kamala Harris, a young U.S. senator and former prosecutor from Oakland. But John rarely cared who the running mate was. When John was a kid during the 1940s, someone had likened the veep’s role to a bucket of warm piss, an opinion John generally shared.

John checked in, signed his name, went to the little booth like he always did every election, primary and general, filled in the little ovals with black ink, folded up his ballot, and brought it back to his friend Peggy Malone. Peggy had been John’s neighbor for sixty years. John flirted with Peggy a little, thanked her, and walked out. He meant to go home, drive to the Cal State Long Beach campus, do his usual three-mile walk, and come back home to practice his saxophone for a couple of hours. John, a widower, was a retired family doctor. Now his passion was playing the saxophone. Since the coronavirus had hit, John had been playing neighborhood concerts every Saturday at 5 p.m., opening his living room windows and playing George Gershwin and Ray Charles and Duke Ellington numbers for anyone who happened by. People brought lawn chairs and wine and plastic cups and sat and listened.

John figured he would turn on the TV around 7 p.m. to watch the returns in front of a TV tray and some Chinese takeout, as he usually did on the evening of each Election Day.

This Election Day would be a little different than any that had gone before.

Since the late seventies, people in California had been mailing in ballots in presidential elections with no excuses required, but never in such high numbers as this year. Some people were scared of the coronavirus. Others were wary of voting in person during a year marked by riots and masses of surly police patrolling the streets. Seventy-five percent of the voters in the country had already voted by mail, most of them weeks earlier.

State and local election officials had done their best to keep up with the staggering volume. But, in August 2020, during one of his purple fits, Trump had slashed $25 billion from the Postal Service’s budget. Congress had tried to help, but the ensuing layoffs meant fewer postal workers to handle and sort the truckloads of ballots that came flowing out of New York and Michigan and California and a lot of other places. In some post offices, the skeleton crews were struggling with equipment breakdowns.

The heaviest volume of ballots, of course, came from California. Voters like John who liked going to the polls were aging out. In October, the Secretary of State’s office had said that sixteen million voters there had voted by mail already.

Political junkies who watched the TV coverage during the day saw an unfolding fiasco. Long lines of voters snaked around blocks in Detroit, Jacksonville, Los Angeles, Albuquerque, and other cities. Shouting matches erupted between polling station workers and voters who hadn’t brought their IDs. Some poll workers, older folks who were a little hard of hearing, had a hard time understanding the irate voters who had been on their feet all day and still hadn’t voted.

In California, things were a mess. Postal service workers had started a wildcat strike, the first one since 1970, in October. They had locked and abandoned dozens of trailers and vans stuffed with mail-in ballots in Fresno and Bakersfield and Alameda and San Diego and a dozen other places. Vandals and outlaws had set some of the vehicles on fire or hot-wired them and driven off. The day before Election Day, one of them had driven a Postal Service truck off the Coronado Bridge in San Diego, in an apparent suicide. The truck had plunged straight to the bottom of San Diego Bay, where the corpse of the driver and the crates of ballots now lay soaking up seawater.

Months earlier, Biden and Trump had both planned for a contested election and a reprise of Bush v. Gore, the epic lawsuit that had wound up at the Supreme Court and delivered the White House to George W. Bush in 2000. In private, Roger Stone, Trump’s Nixon-worshipping confidante and convicted perjurer, liked telling the president it would be Bush v. Gore on steroids.

Biden and Trump each had lawyered up like crazy.

When it came to lawyers, Donald Trump hired only the best, or so he said.

His chief of staff, Mark Meadows, wondered about that sometimes. Meadows was an affable former congressman and real estate developer, a handsome North Carolinian with a nice head of salt-and-pepper hair, Trump’s fourth chief of staff in four years. To Meadows, Trump’s ever-morphing stable of lawyers had been a mixed bag. One of them, Michael Cohen, had attended the worst law school in America -- Meadows couldn’t remember the name of it -- and just finished a stretch in prison for fraud and tax evasion. Rudy Giuliani was a big name and had been a hero after the September 11 attacks. But now, in 2020, Rudy was half in the bag a lot of the time, even while trying to get his face in front of the cameras at Fox News and anyone else who would put him on television. The impeachment defense team of Ken Starr, Alan Dershowitz, and Pat Cippolone, had been fine. As ever with Trump, there had to be a hot blonde in the mix. That was Pam Bondi. To date, all of them had gone unpaid.

Dershowitz was still calling the White House every week about his invoices. No one ever called him back.

In the Oval Office late one night back in June, Trump had sat slouched in the fat maroon leather swivel chair behind the Resolute Desk, brooding, looking at his son-in-law, Jared Kushner, and Meadows, who sat across from him. The thick windows and heavy golden drapes muted the chants of Black Lives Matter and No Justice, No Peace of the protesters massed outside on Pennsylvania Avenue.

The odor of McDonalds fast food pervaded the air. Meadows spied a Big Mac and jumbo order of golden french fries congealing, uneaten, on the desk.

Trump wanted to talk about recruiting a new legal team to spearhead a court strategy which would return him to the White House for four more years. With a black Sharpie, he had scrawled some lawyers’ names on a piece of paper, names he’d heard on TV or here and there down the years. Meadows eyed the list, then looked up at the president.

One name belonged to Dickie Scruggs, a plaintiffs’ class action lawyer from Mississippi. He had been disbarred years ago for trying to bribe a judge.

“None of them fit the bill, Mr. President,” said Meadows. “What we need is a Supreme Court specialist. Someone who’s in front of the Justices all the time. Ted Olson, somebody like that. He was Bush’s lawyer in 2000. That one turned out all right for Bush, sir, if you recall.”

Trump sighed, sat back in his chair and glanced at the ceiling. History bored the piss out of him.

Meadows studied the grain of the Resolute Desk. Down the years, dark orders had gone out from this desk, Meadows thought -- B-52s sent rumbling down runways to drop tons of bombs on North Vietnam, U.S. arms sold to terrorists in return for American hostages, Army troops secretly ordered to invade Cambodia, IRS audits of hostile journalists set in motion, votes on the Civil Rights Act pried out of married white Southern congressmen who would rather not see LBJ let it slip they were screwing their secretaries in the afternoons in cheap motels in Arlington.

Trump stood up and pushed his chair aside. Then he leaned forward over the desk, his enormous gut bulging against it, and planted his hands on the immaculate polished wood surface.

“Fuck that, Mark,” the president said. “They’re all part of the swamp. No more establishment queens! And no more hourly rates! They kill you with the hourly rates! I want Brian Panish. Ever heard of him?”

Brian Panish?

Kushner, his eyebrows arched in confusion, shot a look over at Meadows.

“Who the hell is Brian Panish,” said Kushner, warily.

“He’s a plaintiffs’ lawyer from California, Jared,” Meadows said. “He does death and catastrophic injury cases. He’s a big name in that field. But I haven’t heard that he’s got Supreme Court experience. How is he the right guy for this, Mr. President?”

Trump rolled his eyes. He had to yell at Meadows for a while.

“Mark! He got the biggest verdict in the history of the courts in a personal injury case! Almost five billion dollars, against GM, exploding fuel tank case. Not exactly chump change. That I can tell you.”

Meadows had heard of the verdict all right. It had made the front page of The Wall Street Journal twenty years ago. But what did Brian Panish know about constitutional law or Supreme Court practice?

“Yes, sir,” said Meadows. “Did he wind up taking that case to the Supreme Court? How does he make sense for this?”

Trump balled up his fists and slammed them down on the wood, pow-pow! Kushner was rigid, sitting at attention, like a scared freshman on his first day in high school.

“Don’t you get it, Mark five billion? Think outside the box a little! He knows how to stand up and ask for the moon with a straight face! He asked a jury to give him five billion dollars and they gave it to him! Like his client deserved that amount of money! Come on! This is our guy!”

Kushner cleared his throat. He didn’t like disagreeing with his father-in-law. But he didn’t like being blamed for things going wrong either. Trump had never let Kushner forget the Tulsa rally debacle. What if Panish or someone else crashed and burned at the Supreme Court because he wasn’t the right lawyer for the job?

“He’s never been to the Supreme Court, Mr. President,” Kushner said. “If you died in a flaming train wreck and the insurance company didn’t want to pay, he’d be our man. But . . .”

“But he’s got balls like church bells,” Trump bellowed, finishing Kushner’s sentence for him. “That’s what I want! Balls like church bells! He can go to school on the Supreme Court stuff, or sub it out. How hard can it be? He rammed it up the ass of General Motors, for Christ’s sake!”

Meadows knew what was coming next, the president’s favorite oral punctuation mark, that I can tell you.

“That I can tell you,” the president concluded.

“Yes, sir,” Meadows said meekly.

After Meadows and Kushner had slunk away, Trump picked up the phone.

“Call Dershowitz,” he told the switchboard operator. “Tell him I’m having his bills audited. Five hundred hours for the impeachment thing! At $1000 an hour! It’s bullshit!”

He slammed the phone down, bam!

If I drank booze, he thought, this is where I would have a drink.

Elsewhere in the capital, throughout the summer and into October, the cream of the Supreme Court bar sat by their smartphones and tablets, waiting for a call from the White House. Like every other lawyer in America, they felt a creeping sense of dread when their phones didn’t ring. No one called.

Joe Biden didn’t want any of them either.

“Forget those guys,” Joe Biden had told Kamala Harris back in August on the night before the convention. Biden and Harris were lawyers themselves, though neither one had a single day of experience in private practice. Harris gave Biden a quizzical look.

“I want an outsider, a big name, a smart guy,” Biden said. “How about somebody from California? You’re from California. Do you know anyone good out there?”

Harris had heard of a trial lawyer, Morgan Chu, from Irell and Manella in Los Angeles. He was said to be the best intellectual property lawyer in America.

“I like Morgan Chu,” Harris said. “They don’t come any smarter. He’s a superstar. And I think he’s got Supreme Court experience. We should want that. That’s where this thing will wind up.”

“Chu,” said Biden. “Never heard of him. He’s Asian, I guess?”

Harris grimaced a little, then nodded.

“I like it,” Biden said. “If this thing goes all the way, we’re going to be arguing about the Electoral College numbers. We’ll have an Asian guy up there talking about math!”

When Morgan Chu’s office phone rang the next morning, it was 6:30 a.m.

Chu was dressed nattily in his customary natty red bow tie and blue blazer. The early morning hours were a good time to tend to endless river of emails and sip a fresh cup of coffee in peace. Chu loved that hour of the morning, before the phone started ringing incessantly and the back-to-back Zoom calls and court hearings got going.

“Hello, this is Morgan Chu,” he said.

“Mr. Chu, good morning,” said the voice.

“Yes? Who’s this, please?”

“This is Kamala Harris. Joe Biden and I would like to hire you and your team to handle a case on our behalf in case the upcoming election goes sideways. Would you feel comfortable taking it on?”

Chu had met Kamala Harris at a fundraiser in downtown L.A. years ago, when she was running for Attorney General.

“Tell me more about it,” Chu said cautiously.

His assistant Judy came in, to tell him he had a call. Chu waved her off and silently mouthed can you take a message, I’ll call him back.

On Election Night, as John Ducey watched, CNN called North Carolina for Biden just after 9 p.m. Pacific time. The Tar Heel State had put Biden over the top in the Electoral College, with a projected 270 electoral votes to Trump’s 218.

There was still some more counting to do before it became official. But it was over. Joe Biden was going to be the forty-sixth president of the United States.

From coast to coast, wild celebrations erupted, in streets and parks and bars and living rooms. There were protests too, and some rioting and vandalism. The network anchors could hardly keep up with it all, bouncing from Portland to Detroit to New York to Birmingham and other cities where people full of fear and dread and joy and ecstasy collided with each other.

But, just like in 2000, it wasn’t over.

In the week following Election Day, lawyers were in courthouses all over the place. They were demanding temporary restraining orders and expedited injunctions, appealing or applauding or lamenting the latest rulings, decrying the threat to democracy posed by this or that ruling, baying and preening and posing for the TV cameras in what looked to be a brewing constitutional crisis. The pundits were saying the whole thing could wind up at the U.S. Supreme Court.

In Long Beach, alone in his living room, with his cat for company, John Ducey watched the coverage each night. It’s like 2000 all over again, he thought, only way more violent and weird.

There were peaceful pro-Trump protests aplenty but there was looting and rioting and fighting and assaults on police too, in Indianapolis and Portland and Los Angeles and Albuquerque and Austin and Baton Rouge and Chicago and other places. Everywhere, statues were being pulled down, set on fire, urinated on, defiled by bandanna-wearing young men who unzipped with one hand and waved a fist or middle finger with the other, and spray-painted with every kind of disgusting writing that you could never show on network television or print in a newspaper. Down came Frederick Douglass, Douglas MacArthur, Susan B. Anthony, Ulysses S. Grant, Harriet Tubman, Jefferson Davis, Martin Luther King, Jr., Winston Churchill, Fr. Junípero Serra, Mark Twain, Booker T. Washington, Ronald Reagan, Harvey Milk, Harriet Beecher Stowe, César Chavez, Knute Rockne, Sitting Bull, Malcolm X, George Washington, Vasco de Gama, Rosa Parks, General George Armstrong Custer, Elizabeth Cady Stanton, B.B. King, Ferdinand Magellan -- on and on it went, the finest work of every bronze sculptor of his day treated like it was a monument to Hitler or Stalin, desecrated by jerks who knew as much about history as they did about sculpting, which was nothing.

In Golden Gate Park in San Francisco, some guys pulled down a statue of Robert Emmet, a young Irish patriot whom the British had hanged after a sham court martial in 1803, dragged it into a bed of tulips, doused it with lighter fluid, set it alight, and left it there face down. The same thing happened to Lou Costello’s statue in Paterson, New Jersey. Costello’s stand-up routine, “Who’s on First,” was still beloved by millions of older Americans.

What Robert Emmet and Lou Costello had to do with anything, no one could say.

In Venice, California, the disgraced lawyer Michael Avenatti sat dejected on a sofa, watching the chaos on TV. In 2018, Avenatti, a brash, Trump-hating loudmouth, had wanted to run for president himself. Now he was de-horsed, a convicted felon, wearing an ankle monitor, with two more criminal trials ahead. He was out on bail and broke and suspended from the bar. Judge Jim Selna had let him out of jail on a $1 million bail bond and set strict conditions for his release, including banning Avenatti from using the internet. Before his stupendous fall, Avenatti had been a prodigious Twitter user, with nearly a million followers.

Today, Avenatti couldn’t resist. A friend had slipped him a prepaid smartphone.

The Republic is still at risk, Avenatti tweeted. Donald Trump will not go quietly. The courts must do the right thing so that this monster can be removed from the Oval Office . . .

Two hours later, Selna revoked Avenatti’s bail. The marshals knocked roughly at the door. Avenatti had already packed a toothbrush and some underwear. He went quietly.

Late that night in Philadelphia, Joe Biden, doing his best to seem sprightly, strode to a microphone on a stage decorated with masses of American flags. His wife, Jill, stood off to the side, wearing her best politician’s-wife smile. A couple of steps behind Biden, Kamala Harris stood at attention. Trump hadn’t conceded but it was time to declare victory at last. There was no audience, of course, except for a gaggle of masked-up stagehands and campaign staff. A couple of them helped Biden to his mark, made sure his lav mic was on, and receded into the darkened wings.

A makeup artist applied the last touches of pancake to Joe Biden’s kindly wrinkled old face and poofed up the reforested thatch of white hair on top of his head. She walked off, leaving Biden alone at the lectern.

The director counted Biden in.

“Five, four, three, two, . . .”

Biden let a beat go by. He looked straight into the lens, visualizing, pretending the dark glass orb was the eye of a pretty girl at Claymont Academy in 1960 and he was trying to sweet-talk her outside the locker room on a crisp fall night in the middle of a throng of happy fans after a shower and a big win on the football field.

In the little dining room off the Oval, the only light came from the bank of television monitors that splashed reds and blues and whites on everything.

“This guy, Sleepy Joe,” Trump said. “A very low-IQ individual. Does he even know what state he’s in today?”

“The state of confusion,” said Jared Kushner. Everybody laughed except Mark Meadows.

Meadows had always been uncomfortable with suggestions of Biden’s senility. There had been times when he, Meadows, wondered whether Trump was losing his own marbles or would be the first U.S. president to say shithole or douchebag into a hot microphone on live TV.

“I don’t know, sir,” said the chief of staff. “He’s gaffe-prone all right. But he's been pretty steady lately. They don't let him go off the script."

“You watch, Mark,” said the prez. “He’ll put his foot in it at the worst possible moment, forget his wife’s name onstage, something like that.”

During the debates, each man had struggled at times. But Biden had fared badly in the second debate, when asked a question about American policy on China. He spilled water on himself and referred to the Chinese president as Ho Chi Minh and then tried to recover with a Charlie Chan allusion and then a rambling anecdote about his favorite Chinese takeout restaurant in D.C. He was very fond of their kung pao chicken, he said. Trump had rolled his eyes theatrically, playing to the TV audience, as if to say, Charlie Chan? Really?

After it was over, Biden had come offstage to embrace Jill, his wife. As he exited the brightly-lit stage his eyes didn't adjust right away and he grabbed a female stagehand and kissed her on the lips before realizing Jill was a step behind trying to catch up to him. A camera caught Jill’s face just as Biden planted his lips on the startled young woman’s. The camera mercifully cut away just before Jill dropped her head and started weeping.

But that had been in September. This was now.

“My fellow Americans,” Biden began, grandly.

He flashed his reflexive fake pearly smile, a big toothy smile he’d smiled a million times at county fairs and on the Senate floor and on airport tarmacs all over the world.

“Today we stand at the threshold of history, on the brink of a transformation of our beloved America.”

Even when Biden tried to be Churchillian, it sounded canned, like street-corner pol bullshit a second-rate speechwriter had recycled from an old Mike Dukakis speech that the audience had forgotten five minutes after Dukakis gave it in 1988.

“I want to thank my lovely wife, my partner, my best friend. She’s right here by my side, as she has been throughout our marriage.”

Biden made a half-turn toward stage left and extended his arm toward Jill Biden.

A camera man, following the script, pulled back for a wide shot, following Biden’s lead. Jill stood there, happy, proud, ramrod-straight, in a white Brandon Maxwell dress, looking every inch the former model she was, beaming, a reincarnation of Lady Bird Johnson and Pat Nixon and Joan Mondale and Nancy Reagan all rolled into one. Her eyes brimmed with tears of joy and pride.

Joe Biden waited a beat, to let the image sink in for all the good people watching at home and the men and women serving overseas and even that rat bastard Donald Trump.

“My wife, uh . . .”

Joe Biden looked back into the lens, but a deer-in-the-headlights look had replaced the big smile.

The words had been right in front of him, beaming bright from the twin Teleprompters just a few feet away: JILL BIDEN, WITHOUT WHOM THIS SACRED MISSION, THIS PARTNERSHIP THAT UNITES US ALL TODAY, NEVER COULD HAVE HAPPENED. MY INSPIRATION, MY BEACON, MY ROCK.

The screens flickered for a moment. Then the words disappeared, leaving two blank blue screens.

Kamala Harris heard a commotion backstage. The producers and engineers were scrambling and cussing in hoarse angry whispers and trying to get the Teleprompter screens back up.

No problem, Joe thought. A little ad lib, until they get it back up.

In a flash, Biden remembered Bill Clinton had once ad libbed his way through part of the State of the Union address on live TV after the same thing had happened to him. I can do it too.

“She’s been the best partner a fella like me could ever hope for. She’s going to be our new First Lady. I’m talking, of course, about, uh . . .”

Kamala Harris’ own smile had faded too. Harris had long dreaded this moment, when Joe Biden, the future President of the United States, forgot his wife’s name or who the president of Russia was during a major address to the nation even as she was standing right there.

Come on, Joe, you can do it, she thought. Jill. Jill.

Just then, Brian Panish and his team weren’t watching. They were in their offices on Santa Monica Boulevard, putting the finishing touches on their injunction papers. The afterglow of the sunset still lingered just above the horizon, glowing a faint orange through the light brown pall of L.A. smog that hovered just offshore. There was a big TV monitor mounted high on the wall in a conference room. Someone had muted the audio. “JOE BIDEN ELECTED PRESIDENT OF THE UNITED STATES,” said the crawl. The faces of Wolf Blitzer, Dana Bash, and John King rotated in and out. Their freshly-scrubbed, perfectly made-up faces looked nothing like they had that night in 2016, when they couldn’t hide their dismay and disgust at Hillary Clinton’s shocking defeat. Tonight they all looked happy and content.

Brian Panish had replaced the framed photos mounted on the wall of his office with a giant, floor-to-ceiling whiteboard.  The scrawling which covered it looked like a Bill Belichik game plan written with red and blue Sharpies.  It was a decision tree, the strategy for winning the election in the courts.  Panish had created it over several weeks with the help of a small team of experts and scholars he had hired and paid by the hour at his own expense to educate him on the niceties of constitutional and election law.

Panish pushed the key that triggered the electronic filing of his motion for temporary restraining order and preliminary injunction in the U.S. District Court. This will fry their bacon all right, he thought, echoing a favorite aphorism of his high school football coach.

Panish smiled to himself.  The papers looked good, he thought.  His team of law professors had written drafts loaded with highfaluting jargon and academic mumbo-jumbo.  Panish had distilled it all into his favorite form of legal expression:  plain English in short punchy sentences that were easy to understand whether you were a juror or a federal judge or a bartender in Culver City.

“California’s electoral process is fatally flawed,” said the opening line of Panish’s brief. “The Postal Service has failed to deliver millions of ballots to county registrars. Its illegal strike has idled the engine of American democracy -- the orderly counting of paper ballots which express the will of the voters. Even now, outlaws are destroying trailers loaded with these ballots.

“The Fourteenth Amendment guarantees voters everywhere due process of law and the equal protection of the laws. This guarantee means something in a presidential election. The Supreme Court’s landmark decision in Bush v. Gore taught us that twenty years ago. If that precedent means anything today, it means the court must enjoin California’s secretary of state from declaring a winner in an election whose outcome Americans will never truly know. California’s 55 electoral votes belong to no one.”

At the hearing that Friday, Judge Terry Hatter took the bench at 9 a.m. Across the country, an audience of millions was watching the live feed on the TV networks.

Forty-one years after his ascent to the federal bench in 1979, Hatter, the first African-American to serve as chief judge of the district, remained a formidable presence in the courtroom. One of the last Jimmy Carter appointees still alive and wearing a robe, he still had an agile, curious mind and infinite patience. At an age when many judges had long since died or quit, he still loved cutting the Gordian knot of a vexing legal problem. As he took the bench, everyone was already standing before the bailiff even said, “All rise, please.”

Hatter nodded at the attorneys. Brian Panish rose to take his place at the lectern, but Hatter waved him away.

“I’d like to hear from Mr. Chu first,” said the judge. “Mr. Chu, I think you will have the laboring oar today. The court is inclined to grant the temporary restraining order and set this matter over for an injunction hearing.”

A gasp went up in the courtroom.

“There will be order in the court,” said Hatter, glaring at the gallery over his reading glasses. “Order.”

Hatter now read from a piece of paper. His law clerk had typed it up for the judge and handed it to him back in chambers.

“The court has read all of the papers, and appreciates the speed and energy devoted to this weighty matter by all counsel,” said the judge. “No party disputes that at least four million mail-in ballots have gone astray due to an illegal strike by the employees of the U.S. Postal Service. These ballots may never be recovered and counted. Neither California’s state government, the court, nor the people of this state can have any confidence that the process designed for the orderly selection of California’s electors, and, in turn, the president of the United States, has functioned properly in this instance. Voters have the right to an orderly process. They also have the right to the equal protection of the laws. These rights are at grave risk today.

“The court, as well as your clients, gentlemen, cannot pretend to know the degree to which those rights were violated last Tuesday, nor who is entitled to claim California’s 55 electoral votes.”

Inside Morgan Chu, who now stood at the lectern, a neural alarm went off. Chu waited for the judge to pause so he could interject something, maybe sidetrack the train that was gaining speed and hurtling toward his client’s case, tell Hatter he was wrong and that the federal courts shouldn’t inject themselves into national presidential elections and that Panish’s logic was superficial and flawed. But Terry Hatter didn’t look up at him.

A feeling dawned on Chu that every other lawyer in America had felt at one time or another: whatever he was going to get to say was going to be for the record on appeal and wouldn’t change the judge’s mind. He might as well have been a mannequin standing there. Judge Hatter kept on reading.

“The Secretary of State, Alex Padilla, is hereby enjoined from certifying the results of the election held on November 3, 2020, to the Electoral College or to any other agency or body,” the judge said. “In California, the results of this election are null and void.”

Subtracting California’s 55 electoral votes from Joe Biden’s total of 270 left him with 215, three less than Trump's 218.

No one had won. Not yet.

In the west wing of the White House, there was jubilation. Wild cheers went up in the offices and corridors. They were audible all the way down in the warren of media cubicles in the basement. In the little dining room off the Oval, Trump laughed out loud, something he rarely did.

“Good old Terry Hatter!” he cried. “I love the bastard! That I can tell you!”

Ivanka and Jared came in for hugs, which Trump rarely gave them or anyone. No one seemed to know where the First Lady was.

Mark Meadows kept his gaze on one of the TV monitors. “COURT RULING THROWS PRESIDENTIAL ELECTION INTO HOUSE OF REPRESENTATIVES,” read the crawl. Wolf Blitzer, Dana Bash, and John King all were trying and failing to conceal the same sadness that had crept into their faces on Election Night in 2016, when Trump had stunned everyone, including himself, by winning the election.

Meadows was thinking ahead. Under the twelfth amendment, each state’s delegation to the House got a single vote, whether it was Rhode Island’s or New York’s. A simple majority, 26 out of 50, would carry the day. Can we get to 26? Meadows wondered. He started dialing his cell phone.

There was precedent for the situation. But no one had been alive when it had last happened, in 1824, when the House had given the White House to John Quincy Adams even after Andrew Jackson had won majorities in the Electoral College and popular vote. There were constitutional law scholars and Harvard law professors who had written thousands of pages about the legal niceties of contingent elections in the House. The footnotes numbered in the hundreds of thousands. Who had time to read them all? Or to watch Alan Dershowitz and Jeffrey Toobin and a hundred other pompous TV lawyers blather on about it on the cable networks?

For the next four weeks, the war for 26 votes in the House of Representatives went on nonstop -- by phone, in person and to hell with masks, by Zoom. 

Copyright © 2020 by Dan Lawton. All rights reserved. 

➽ Dan Lawton is a lawyer and writer in California.

3 comments: