Joseph Sabino Mistick: Preparing for the post-election crisis

Just as in 2020, there will be two distinct elections this presidential election year. The first one will start when the polls open for voters on Election Day and end when the polls close later that evening. It will be all about the voters.

It may not be perfect, because elections are human endeavors and there will be some honest mistakes, but it will be the best election in the world. Each polling place is run by our neighbors, good Americans who work long hours for little pay because they believe it is their duty.

A second election — starting one minute after the polls close — will be all about the lawyers. It will end — hopefully — on Inauguration Day with the new president taking the oath of office at the Capitol.

It has not always been this way, but there have been some stumbles. In 1876, Rutherford B. Hayes lost the popular vote but was declared president by a congressional commission. George W. Bush lost the popular vote but won the 2000 election when the U.S. Supreme Court essentially gave him Florida’s 25 electoral votes.

After most presidential elections — even a close one like Kennedy-­Nixon in 1960 — the parties move on after the results are announced. That is not how it happened after the 2020 Biden-Trump race. That is not how it is likely to happen this year.

The 2020 election saw more than 60 unsuccessful post-election challenges filed by an army of pro-Trump lawyers across the land. Later, there was the violent and unsuccessful assault on our Capitol aimed at preventing the certification of President Biden’s election.

Former Acting U.S. Solicitor General Neal Katyal said last week that the danger this time is even greater. “I think we are looking at a very possible constitutional crisis and one that’s going to make Jan. 6, 2021, look like a dress rehearsal,” Katyal said.

In a New York Times column, Katyal wrote, “The rogues are no longer amateurs. They have spent the last four years going pro, meticulously devising a strategy across multiple fronts — state legislatures, Congress, executive branches and elected judges — to overturn any close election.”

Lawsuits have already been filed across the nation challenging minor changes in voting procedures. And the stage has been set for wholesale objections to votes in areas where Trump is unlikely to run strong.

The Electoral Count Reform Act that Congress passed in 2022 corrected some problems, but it may have created others since some new provisions have not been tested. And the constitutionality of the entire act may still be an open question.

All these strategies are designed to create delay in the counting and certifying of electors from strategically designated states if Trump comes up short. The objective is to change the result of the Electoral College vote or throw the election into the House of Representatives, disenfranchising the voters.

And Trump has greased the path for another “Big Lie” that the election was stolen if he loses. He and JD Vance are sticking to the Big Lie about 2020. Trump refuses to say he will accept the result this time. It’s right out of the propagandist’s handbook.

The good news is that those who value the republic have also had four years to prepare. They know what’s coming. They have their own lawyers who are ready for this fight. And, once again, this second election, in the courts and Congress, will depend on good Americans standing up for American values.