There’s going to be a presidential election in a couple weeks, but few think that we’ll know for sure the next president on November 5—what used to be known, quaintly, as “Election Day.”
Most likely, it’s going to be weeks, maybe even months, before we see a victor. And here’s a prediction: The Sturm und Drang will come in five phases: litigation, negotiation, discreditation, devolution, and then, monetization. I can explain.
First, litigation. “The lawfare election”—that was the October 15 headline in POLITICO’s “Playbook” newsletter. “The Harris campaign is already involved in dozens of lawsuits—one official we spoke with last night boasted about winning nine out of ten cases that have already been decided—while assembling what they are calling the ‘biggest voter protection operation in presidential campaign history.’ Hundreds of lawyers are on call for Harris in all 50 states.”
Donald Trump, too, has lawyers. So billable hours will pile upon pro bono time, and a thousand litigious nightshades will bloom.
All this litigating, of course, will occur in the context of photo ops, press conferences, protests, and every other kind of political performance art—peaceful, mostly peaceful, or outright violent.
And did I mention that Trump is scheduled to be sentenced in New York City on November 26 for those 34 felonies? If Trump seems to have won the election, New York will stand down in deference to the president-elect—or will it? If Empire State Democrats have worked this hard to prosecute Trump out of the presidency, will they suddenly give up? Miss a chance, maybe, darkly, to “Epstein” Trump in jail? (Those who think it can’t happen to Trump might grapple with how it did happen to Epstein.)
There’s no way to know who will prevail in the many legal battles. On the one hand, Democrats have a deeper bench of law schools, Naderites, and ACLUs. On the other hand, Republicans have the Federalist Society, a new crop of Aileen Cannons, and those justices on the Supreme Court.
But of course, all the legal skirmishes must translate into electoral votes for someone; these are to be tallied on December 17. Yet even if that date isn’t overridden somehow, we can ask: Will every presidential elector be faithful to his or her duty? After all, there’ve been plenty of “faithless electors” in the past. Yes, in 2020, the Supreme Court ruled that a faithless can be replaced by a faithful. But what if the replacement process breaks down for some reason?
We are reminded: Much of our current system depends on trust. If that erodes, there’s not much left.
So now we come to the second part of our sequence, negotiation. We saw plenty of haggling and horse-trading in the 1876 presidential election, when dueling slates of electors, Republican and Democratic, presented themselves in four states. Congress couldn’t resolve the disputes and so kicked it over to a commission, which wheeled and dealed, wined and dined—and then picked Rutherford B. Hayes as the victor on March 2, 1877, a full four months after Election Day.
Of course, we saw something similar, wannabe electors, in 2020. Only this time around, 24 of them have been indicted. Will that prosecutorial brushback convince Republicans not to do dueling slates in 2024? Perhaps. But a lot depends on who GOPers think is going to win in the end.
We should keep in mind that all this electoral-college proceduralism will be happening in the presence of billionaires, many of whom are, uh, deeply invested in the outcome and so may wish to do all they can to clinch it for their candidate. Would any fatcat engage in monetary importuning, which some might call bribing? Yes, we’d be shocked, shocked if that were to happen—and in any case, that’s what middlemen are for. Once again, a lot depends on who is deemed to be the victor. It’s a good bet that nobody on the winning team will be punished for securing the win.
There are still more pressure points to be negotiated. On January 6, 2025, Congress is scheduled to certify the electoral college result. But what if that doesn’t happen? What if one party controls one or both chambers and doesn’t choose to anoint a candidate it doesn’t like? To read the 12th Amendment and the Electoral Count Reform Act of 2022 is to wander into a devil’s playground of possibilities. According to the 2022 law, Congress can vote to challenge the results if one-fifth of either chamber makes the request (how hard will that be?) and could reject the results if it finds that “one or more electors has not been regularly given” (once again, how hard will it be to assert that?).
If Congress deadlocks, it’s possible that the next president could be… the Speaker of the House. So political players should keep the names “Johnson” and “Jeffries” on their bingo cards.
The lesson is that it’s hard to write a law to cover every possible circumstance, especially if players are not playing in good faith and especially, too, if they think a victory by the other side is Götterdämmerung.
Speaking of Germans, or at least German-Americans, Donald Trump sure seems to see his opponents in Schmittian terms. They are “enemies of the people,” he says, “evil”—and he’s just getting started.
As for the Democrats, as they tear into Trump, they tag him as the worst kind of Teuton. Back in January, I wrote for The American Conservative, “The Trump-as-dictator, even Trump-is-Hitler, memeing is fast and furious. If it keeps up, by this time next year, the feeling among many/most/all Democrats will be that letting the Bad Orange Man return to the White House under any circumstances is akin to putting an American Führer in power. No Democrat sitting in the West Wing wants to risk being remembered as a dupe, as an American Hindenburg.”
In the ten months since, has Trump mellowed? Have the Democrats (and others) softened their view of the man? Of course not. Yet through it all, Trump’s approval rating is sometimes higher than Harris’s. We’re dealing with two high-negative figures.
So now to the third part of our quintet, discreditation. Beyond the presidency, the disrepute of the federal government is hardly a new concept, and yet a recent Edelman poll, surveying 25 countries, shows it in a new light. When the respective publics were asked about their trust in their central government, the range was 77 percent to 21 percent; the U.S. rating was 40, putting us eighth from the bottom.
If we wish to, we can step away from polls and simply ask: Which aspect of Uncle Sam’s oeuvre do Americans think is working well? The border guarders? The Gaza pier builders? The federal school-bathroom enforcers? The FEMA storm relievers?
If Americans don’t trust the federal government, then it will probably shrink, starved for lack of confidence; it’s no accident that both Trump and Harris talk more about tax cuts than spending increases.
So from discreditation we move to the fourth part, devolution. To see how this could work, we can look back again to the 1876 presidential election, the one that took four months to resolve. The gist of the deal that gave Hayes the White House was the withdrawal of federal troops from the South: the end of Reconstruction.
To put those events another way, they were a major diminishment of federal power, a major enhancement of state power—devolution.
The Compromise of 1877 is not remembered kindly by most historians, as it led to the suppression of freedmen in the South, and yet at the time, it was regarded as a plausible settlement. For their part, Republicans were weary of Reconstruction, and mindful of its political cost to them. In the 1874 midterm elections, during the scandal-plagued administration of GOP President Grant, the Democrats had won back the House, a startling comeback for the Johnny Rebs.
Moreover, the Democrats—whose coalition also included fast-growing numbers of Northern Catholics—won the popular vote in 1876. So Republicans were happy just to keep the presidency.
And for the Democrats, the pain of not winning the White House was compensated by Uncle Sam’s withdrawal from the South, enabling them to tighten their dominion over Dixie.
A century-and-a-half later, the issues have changed. Thankfully, Jim Crow is no longer a thing, and yet federal aggrandizement is very much a concern. Plenty of Americans, especially in red states, feel they are in some sort of peonage to the “Regime” in Washington, D.C. That is, a Regime of gun-grabbing, electric vehicle-mandating, transgender-pushing, DEI-imposing bureaucrats and legal activists.
To be sure, for every red-stater who hates all this, there’s a blue-stater who loves it—the national polls are that close. The result of this repulsion-attraction dynamic is plenty of energy. For the United States, it’s as if two stars, one red, one blue, are whipping around each other, locked in a furious mutual orbit.
It’s possible that those two stars could collide in 2024–25, and the result could be strife, even civil war. Back in 1861, “fire eaters” in the South wanted a scrap, and Lincoln licked ‘em. (Rhett Butler’s warning to the hotblooded cavaliers at Tara was not heeded.)
Mindful of such awful history, disputatious factions within the U.S. should look for a different model. Somewhere between the status quo and secession—let carnage be the stuff only of Hollywood.
If the memory of the Compromise of 1877 is too freighted, perhaps we should think of another compromise—in a different country, in a different year—that changed the status quo, peacefully. That would be 1867, when the Habsburg Empire became Austria-Hungary. Still one country, but two internal systems. Not a perfect solution, but given all the fissiparous possibilities, a pragmatic one.
Of course, knowing what we know, we on this side of the Atlantic can strive to do better: An American e pluribus duo could provide just the right mix of unity and diversity. Already, the red states and blue states have been pursuing different economic strategies. Yet even so, we can see a potentially enveloping win-win: AI’s rushing hunger for energy could bind the blue brain with red brawn into a grand carbon bargain.
In the meantime, a weakened federal government would open up additional opportunities for the states to do more of what they might wish to do—and if so, they could realize their own greater economic potential.
Which brings us to the fifth of our five, monetization. The 50 states, freer to act on their own, could each be a laboratory of democracy. And if they do it right, of prosperity.
Successful states will find ways to nurture or attract entrepreneurs and business clusters. Case in point: Elon Musk, a recent transplant from California to Texas. His X site, recently relocated with him to Texas, has become the new Fox News—the best place for conservatives to convene.
And oh yes, Musk has a rocket company, as well as other assets, that have much exposure to federal regulation. Many times, in fact, Musk has taken to X to vent about the errors of the Securities and Exchange Commission, the Federal Aviation Administration, the Fish and Wildlife Service, and the overall dead hand of regulation.
If Trump becomes president, Musk’s federal regulatory problems will likely disappear. But what if Harris is 47? In the meantime, Musk has further issues with a state entity, the California Coastal Commission.
Here we can see that Musk’s vulnerability in the Golden State is an opportunity for the Lone Star State. Quite possibly, Musk will have to complete his retreat to Texas, which could be his own legal fortress. Red Republicans in Austin could create the legal citadel—shielding Musk from regulators—he needs to keep doing his thing. Part of the reward, in return, would be Texas as the launchpad for the next million Mars-bound rockets.
A state-based encasement for Musk would end up in court, of course, but then the key question: Who are the judges? Are they friendlies or hostiles? Republicans long ago concluded that the increasingly woke American Bar Association is not to be trusted on judicial selection, and so they turned to the Federalist Society to develop their own judicial farm team, drafting only from it.
If Harris wins and Republicans nevertheless end up with a majority in the Senate, the 119th Congress will be a new ballgame, judge-confirmation-wise. Texas’s Sen. John Cornyn says that a GOP Senate simply would not confirm “radical” judges, and that any nominee will have to be the subject of “negotiation with us.”
There’s something of an irony that in polarized times, divided control of the branches could mean a kind of coalition government. If so, each side of the coalition will have its must-haves. Chances are, in light of his MAGA service, Musk’s needs will rank high on the GOP list.
(And yes, there’s the question of what Democrats will do to Musk if they win all the marbles, nationally. Will they keep all his contracts with NASA, for instance? Musk might be thinking NASA needs him more than he needs NASA, and the current NASA seems to agree. But that’s one of many matters that could be stress-tested in the years to come.)
Of course, if Musk gets special love from Republicans, other members of Team Red will want the same. For instance, what of cryptocurrency? Even amidst the floating virtuality of cyberspace, geography will still matter. Why? Because data might be in the cloud, but people have to live, and consume, somewhere. Wyoming, to name one physical place, seeks to be a crypto-Switzerland.
In fact, Cowboy State sovereigntists have a lot up their sleeves. Mindful that the feds own 48 percent of its land, Wyoming Republicans want to repossess some of it for new housing. The green imperialists in Washington, DC will resist, of course, and so the fight will commence. If and only if Republicans stick together, we could see a dissolution of the properties.
This is what monetization could look like, as red states claw away economic assets from regulators and absentee landlords. New frontiers of tycooning and deal-making would open up. To be sure, blue states could have their own version of this bonanza, as they fight a red president on matters of personal and digital freedom.
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It’s a simple enough point: Just as splitting the atom releases energy, so does devolving the leviathan.
To be sure, it’s some number of jumps from the current litigation mess to the ultimate monetization prize, to the gold at the end of devolution’s rainbow. And events might not unfold this way.
Yet there’s a logic to this unfolding, because ideological polarization connects with financial self-interest to establish a new political equilibrium. And so the current storm clouds could have a silver lining. Gold, too.
