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      Why Andrew Yang’s New Third Party Is Bound to Fail

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      Let’s not mince words. The new Forward Party announced by the former presidential candidate Andrew Yang, former Gov. Christine Todd Whitman and former Representative David Jolly is doomed to failure. The odds that it will attract any more than a token amount of support from the public, not to mention political elites, are slim to none. It will wither on the vine as the latest in a long history of vanity political parties.Why am I so confident that the Forward Party will amount to nothing? Because there is a recipe for third-party success in the United States, but neither Yang nor his allies have the right ingredients.First, let’s talk about the program of the Forward Party. Writing for The Washington Post, Yang, Whitman and Jolly say that their party is a response to “divisiveness” and “extremism.”“In a system torn apart by two increasingly divided extremes,” they write, “you must reintroduce choice and competition.”The Forward Party, they say, will “reflect the moderate, common-sense majority.” If, they argue, most third parties in U.S. history failed to take off because they were “ideologically too narrow,” then theirs is primed to reach deep into the disgruntled masses, especially since, they say, “voters are calling for a new party now more than ever.”It is not clear that we can make a conclusion about the public’s appetite for a specific third party on the basis of its general appetite for a third party. But that’s a minor issue. The bigger problem for Yang, Whitman and Jolly is their assessment of the history of American third parties. It’s wrong.The most successful third parties in American history have been precisely those that galvanized a narrow slice of the public over a specific set of issues. They further polarized the electorate, changed the political landscape and forced the established parties to reckon with their influence.This also gets to the meaning of success in the American system. The two-party system in the United States is a natural result of the rules of the game. The combination of single-member districts and single-ballot, “first past the post” elections means that in any election with more than two candidates, there’s a chance the winner won’t have a majority. There might be four or five or six (or even nine) distinct factions in an electorate, but the drive to prevent a plurality winner will very likely lead to the creation of two parties that take the shape of loose coalitions, each capable of winning that majority outright.To this dynamic add the fact of the presidency, which cannot be won without a majority of electoral votes. It’s this requirement of the Electoral College that puts additional pressure on political actors to form coalitions with each other in pursuit of the highest prize of American politics. In fact, for most of American history after the Civil War, the two parties were less coherent national organizations than clearinghouses for information and influence trading among state parties and urban machines.This is all to say that in the United States, a successful third party isn’t necessarily one that wins national office. Instead, a successful third party is one that integrates itself or its program into one of the two major parties, either by forcing key issues onto the agenda or revealing the existence of a potent new electorate.Take the Free Soil Party.During the presidential election of 1848, following the annexation of Texas, the Mexican-American War and the Treaty of Guadalupe Hidalgo, a coalition of antislavery politicians from the Democratic, Liberty and Whig Parties formed the Free Soil Party to oppose the expansion of slavery into the new Western territories. At their national convention in Buffalo, the Free Soilers summed up their platform with the slogan “Free soil, free speech, free labor, free men!”The Free Soil Party, notes the historian Frederick J. Blue in “The Free Soilers: Third Party Politics, 1848-1854,” “endorsed the Wilmot Proviso by declaring that Congress had no power to extend slavery and must in fact prohibit its extension, thus returning to the principle of the Northwest Ordinance of 1787.” It is the duty of the federal government, declared its platform, “to relieve itself from all responsibility for the existence of slavery wherever that government possesses constitutional power to legislate on that subject and is thus responsible for its existence.”This was controversial, to put it mildly. The entire “second” party system (the first being the roughly 30-year competition between the Federalists and the Jeffersonian Republicans) had been built to sidestep the conflict over the expansion of slavery. The Free Soil Party — which in an ironic twist nominated Martin Van Buren, the architect of that system, for president in the 1848 election — fought to put that conflict at the center of American politics.It succeeded. In many respects, the emergence of the Free Soil Party marks the beginning of mass antislavery politics in the United States. They elected several members to Congress, helped fracture the Whig Party along sectional lines and pushed antislavery “Free” Democrats to abandon their party. The Free Soilers never elected a president, but in just a few short years they transformed American party politics. And when the Whig Party finally collapsed under the weight of its own contradictions, after General Winfield Scott’s defeat in the 1852 presidential election, the Free Soil Party would become, in 1854, the nucleus of the new Republican Party, which brought an even larger coalition of former Whigs and ex-Democrats together with Free Soil radicals under the umbrella of a sectional, antislavery party.There are a few other examples of third-party success. The Populist Party failed to win high office after endorsing the Democratic nominee, William Jennings Bryan, for president in 1896, but went on to shape the next two decades of American political life. “In the wake of the defeat of the People’s party, a wave of reform soon swept the country,” the historian Charles Postel writes in “The Populist Vision”: “Populism provided an impetus for this modernizing process, with many of their demands co-opted and refashioned by progressive Democrats and Republicans.”“By turn of fate,” Postel continues, “Populism proved far more successful dead than alive.”On a more sinister note, the segregationist George Wallace won five states and nearly 10 million ballots in his 1968 campaign for president under the banner of the American Independent Party. His run was proof of concept for Richard Nixon’s effort to fracture the Democratic Party coalition along racial and regional lines. Wallace pioneered a style of politics that Republicans would deploy to their own ends for decades, eventually culminating in the election of Donald Trump in 2016.This is all to say that there’s nothing about the Forward Party that, as announced, would have this kind of impact on American politics. It doesn’t speak to anything that matters other than a vague sense that the system should have more choices and that there’s a center out there that rejects the extremes, a problem the Democratic Party addressed by nominating Joe Biden for president and shaping most of its agenda to satisfy its most conservative members in Congress.The Forward Party doesn’t even appear to advocate the kinds of changes that would enable more choices across the political system: approval voting where voters can choose multiple candidates for office, multimember districts for Congress and fundamental reform to the Electoral College. Even something as simple as fusion voting — where two or more parties on the ballot share the same candidate — doesn’t appear to be on the radar of the Forward Party.The biggest problem with the Forward Party, however, is that its leaders — like so many failed reformers — seem to think that you can take the conflict out of politics. “On every issue facing this nation,” they write, “we can find a reasonable approach most Americans agree on.”No, we can’t. When an issue becomes live — when it becomes salient, as political scientists put it — people disagree. The question is how to handle and structure that disagreement within the political system. Will it fuel the process of government or will it paralyze it? Something tells me that neither Yang nor his allies have the answer.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      There Are 100 People in America With Way Too Much Power

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      Toward the end of my Tuesday column on the Senate, I gestured toward the idea of making it into something like the British House of Lords, which has limited power to veto legislation or make policy. Most democracies with bicameral national legislatures have done something similar, empowering their lower, popular chambers and weakening their upper chambers.The Canadian Senate, for example, acts mainly as a council of revision, amending legislation that comes out of the House of Commons. It can reject legislation, but it rarely exercises that power. The Australian Senate has much more power to block legislation from the House, but the chamber is more democratic than its American counterpoint in that it is apportioned by proportional representation.The United States stands alone with a Senate that is powerful enough to grind the entire legislature to a halt. You could end the filibuster, of course, and that would improve things, but it would take a constitutional amendment to do any root and branch reform of the Senate.Let’s say that amendment was on the table. What would it say?What I would write is simple. I would repeal the 17th Amendment, returning the election of senators to each state legislature, and restoring the federal nature of the chamber. But to compensate for the end of popular election of senators, I would also strip the Senate of its power to introduce or veto legislation.In my vision, the Senate would be a council of revision that continues to represent the states as states. I think this is necessary because the United States will likely be a federal democracy for as long as it exists, and the system should probably accommodate the interests of state governments (insofar as they exist) in one way or another.My Senate could not block House legislation, but it could offer amendments if it chose to take action. Those amendments would then be voted on by a conference committee of House and Senate members, for final approval. If the Senate decides to hold a bill for revision, it has a set amount of time — let’s say 60 days — with which to act. If it does not act in that time, the bill is deemed passed and goes to the president for signing.The Senate would retain its oversight powers as well as its power to approve treaties and offer “advise and consent” to the president for judicial and executive branch nominees. But “advise and consent” would mean an actual hearing and an actual vote.The idea is to move the locus of policymaking back to the House of Representatives (which I would like to enlarge to at least 600 members), and to make it the most important chamber in the operation of government. In this scheme, it might be worth extending House terms to three years to reduce the pressures of campaigning and allow members more time to develop expertise, should they seek it.My basic principle here is that the popular chamber of Congress should also be the most influential one. You see some of this in the Constitution as written — Article I, Section I establishes the Congress and Section II establishes the House — but I’d like to make it the defining part of our constitutional system. I also think that we’d have a more agile and effective government if we removed the veto point that is the Senate.My scheme for transforming the structure of American government is a little broader and more nuanced than this (I’d like to extend federal representation to territories and Americans abroad, for example), but these are the basics of a major part of it. The Senate is too powerful. Let’s cut it down to size.What I WroteMy Tuesday column was on the problem of the Senate:It may seem odd to blame the institution for this outcome. It’s not as if there is any alternative to passing legislation through both chambers of Congress. But it’s also no accident that climate legislation has repeatedly been passed in the House only to collapse in the Senate. It is no accident that, as a general rule, the upper chamber is where popular legislation goes to die or, if it isn’t killed, where it is passed in truncated and diminished form, like the recent (and lackluster) bipartisan gun bill. The Senate was built with this purpose in mind. It was designed to keep the people in check — to put limits on the reach of democracy and the scope of representation.And my Friday column was on the problem of the Electoral College (a recurring theme, I know):The Electoral College makes it difficult to see that each state contains a multitude of political perspectives, and that our democracy might be a little healthier if the vote of a Seattle Republican mattered as much for the outcome of a presidential election as that of a Green Bay Democrat.Now ReadingErwin Chemerinsky in defense of judicial review for The American Prospect.Corey Robin on Clarence Thomas for The New Yorker.Sarah Jones on the anti-abortion movement for New York magazine.Vanessa Williamson on taxation for Dissent.B.D. McClay on sore winners for The Outline.Feedback If you’re enjoying what you’re reading, please consider recommending it to your friends. They can sign up here. If you want to share your thoughts on an item in this week’s newsletter or on the newsletter in general, please email me at jamelle-newsletter@nytimes.com. You can follow me on Twitter (@jbouie), Instagram and TikTok.Photo of the WeekI took this years ago at a Civil War re-enactment marking the 150th anniversary of the surrender at Appomattox. The Robert E. Lee and Ulysses S. Grant re-enactors were having a coffee and relaxing a bit before the day’s festivities.Now Eating: Curried Broccoli and Cauliflower SaladThis recipe is from the wonderful book “Jubilee: Recipes From Two Centuries of African American Cooking,” by Toni Tipton-Martin. It is very easy to put together, and very, very good. This recipe makes enough for about four people, and you can easily double it if you’re cooking for a group. I didn’t make any adjustments to the salad the last time I made it, but what I will recommend is to make your own mayonnaise. It’s pretty easy, and the results are far superior to anything you can get from the store.Ingredients4 slices bacon½ cup mayonnaise¼ cup sugar1 tablespoon cider vinegar¼ teaspoon curry powder or more, to tasteSalt2 cups broccoli florets, trimmed and cut into bite-size pieces¼ cup sliced celery.2 cups cauliflower florets, trimmed and cut into bite-size pieces⅓ cup plus one tablespoon raisins⅓ cup plus one tablespoon toasted slivered almondsDirectionsIn a medium skillet, cook the bacon over medium-high heat until crisp, about 7 minutes. Drain on paper towels and crumble when cool enough to handle. Reserve the fat for another use.In a small bowl, mix together the mayonnaise, sugar, vinegar, curry powder, and salt to taste.In a serving bowl, layer the broccoli florets, celery, and cauliflower. Pour on all the dressing. Add a layer of raisins, then almonds, then top with the bacon. Cover with a tightfitting lid or plastic wrap. Refrigerate for at least 8 hours or overnight. Toss before serving. More

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      Next Time Trump Tries to Steal an Election, He Won’t Need a Mob

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      Last week, the Supreme Court announced it would hear arguments in Moore v. Harper, a challenge to North Carolina’s new congressional map.The long and short of the case is that North Carolina Republicans proposed a gerrymander so egregious that the state Supreme Court ruled that it violated the state’s Constitution. Republicans sought to restore the legislative map, citing the “independent state legislature doctrine,” which asserts that state legislatures have almost absolute power to set their own rules for federal elections. Once passed into law, then, those rules cannot be overturned — or even reviewed — by state courts.A Republican victory at the Supreme Court would, according to the election law expert Rick Hasen, “radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights.”This radical interpretation of the Elections Clause of the Constitution also extends to the Presidential Electors Clause, such that during a presidential election year, state legislatures could allocate Electoral College votes in any way they see fit, at any point in the process. As I argued earlier this year, we could see Republican-led states pass laws that would allow them to send alternative slates of electors, overruling the will of the voters and doing legally what Donald Trump and his conspirators pressured Republicans in Arizona and Georgia to do illegally. Under the independent state legislature doctrine, the next time Trump tries to overturn the results of an election he lost, he won’t need a mob.There are many problems with this doctrine beyond the outcomes it was engineered to produce. Some are logical — the theory seems to suggest that state legislatures are somehow separate and apart from state constitutions — and some are historical. And among the historical problems is the fact that Americans have never really wanted to entrust their state legislatures with the kind of sweeping electoral powers that this theory would confer.For most of the first 50 years of presidential elections, there was no uniform method for the allocation of electors. In the first truly competitive race for president, the election of 1800, two states used a winner-take-all system where voters cast ballots to pick their electors directly, three states used a system where electors were chosen on a district-by-district basis, 10 states used a system where the legislature simply chose the electors, and one state, Tennessee, used a combination of methods.Methods changed from election to election depending on partisan advantage. Virginia moved from the district system in 1796 to the winner-take-all “general ticket” in 1800 to ensure total support for Thomas Jefferson in his contest against John Adams. In retaliation, Adams’s home state of Massachusetts abandoned district elections for legislative selection, to ensure that he would get all of its electors.This kind of manipulation continued until the mid-1830s, when every state save South Carolina adopted the “general ticket.” (South Carolina would not allow voters to directly choose electors until after the Civil War.)Beginning in 1812, however, you can start to see the public and its elected officials turn against this use of state legislative power.Jefferson’s Democratic-Republican Party was still in power. James Madison, his longtime friend and political ally, was president. But he, and the war he was now fighting, were unpopular.Most members of Congress had backed Madison’s call for war with Great Britain. But it was a partisan vote with most Republicans in favor and every Federalist opposed.The reasons for war were straightforward. The “conduct of her government,” said Madison in his message to Congress requesting a declaration of war, “presents a series of acts hostile to the United States as an independent and neutral nation.” Among those acts were impressment of American seaman (“thousands of American citizens, under the safeguard of public law and of their national flag, have been torn from their country”) and attacks on American commerce (“British cruisers have been in the practice also of violating the rights and the peace of our coasts.”).In fighting Britain, the administration and its allies hoped to pressure the crown into a more favorable settlement on these maritime issues. They also hoped to conquer Canada and shatter British influence in the parts of North America where it allied with Native tribes to harass American settlers and stymie American expansion.Those hopes crashed into reality, however, as an untrained and inexperienced American militia flailed against British regulars. And as the summer wore on, bringing him closer and closer to the next presidential election, Madison faced defeat abroad and division at home. In New England especially, his Federalist opponents used their hold on local and state offices to obstruct the war effort.“In Hartford,” writes the historian Donald Hickey in “The War of 1812: A Forgotten Conflict,” “Federalists sought to end loud demonstrations by army recruiters by adopting a pair of city ordinances that restricted public music and parades.” In Boston, “the Massachusetts legislature threatened to sequester federal tax money if militia arms due to the state under an 1808 law were not delivered.”Fearing defeat in the presidential race as a result of this anger and discontent over the war, Republicans did everything they could to secure Madison’s victory. The historian Alexander Keyssar details these shenanigans in the book “Why Do We Still Have the Electoral College?” He notes that,In North Carolina, which had utilized a district system since 1796, the legislature announced that it would choose electors by itself: its majority feared that Madison might lose the state to DeWitt Clinton, who ran with the support of both Federalists and dissident Republicans.On the other side, “the Federalist legislature in New Jersey announced, just days before the election, that it was canceling the scheduled balloting and appointing electors of its own.” And in Massachusetts, the Republican-led senate and Federalist-led lower house could not agree on a method for choosing electors. “In the end,” notes Keyssar, “an extra legislative session had to be convened to save the state from losing its electoral votes altogether.”Madison was re-elected, but according to Keyssar, the attempt on both sides to manipulate the outcome “ignited firestorms of protest and recrimination.” A number of lawmakers would try, in the immediate aftermath and the years that followed, to amend the Constitution to end legislative selection of electors and mandate district-based elections for the Electoral College.District elections, according to one supportive congressman, were best because they fit the “maxim that all legitimate power is derived from the people” and because they would reduce the chance that “a man may be elected to the first office of the nation by a minority of votes of the people.”This concern for democracy (or “popular government”) was a big part of the case for reform. For Senator Mahlon Dickerson of New Jersey, allowing legislators to choose electors without giving voters a say was “the worst possible system” as it “usurped” power from the people and departed from “the spirit if not from the letter of the Constitution.”Even at this early juncture in our nation’s history, many Americans believed in democratic participation and sought to make the institutions of the Republic more receptive to the voice of the people. One supporter of district elections, Representative James Strudwick Smith of North Carolina, put it simply: “You will bring the election near to the people, and, consequently you will make them place more value on the elective franchise, which is all-important in a republican form of Government.”There is a somewhat common view that the counter-majoritarianism of the American system is acceptable because the United States is a “Republic, not a democracy.” That notion lurks behind the idea of the “independent state legislature,” which would empower partisans to limit the right of the people to choose their leaders in a direct and democratic manner.But from the start, Americans have rejected the idea that their system is somehow opposed to more and greater democracy. When institutions seemed to subvert democratic practice, the voters and their representatives pushed back, demanding a government more responsive to their interests, desires and republican aspirations. It is not for nothing that the men who claimed Jefferson as their political and ideological forefather labeled their party “The Democracy.”As Americans recognized then, and as they should recognize now, the Constitution is not a charter for states or state legislatures, it is a charter for people, for our rights and for our right to self-government.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Pence Aide Warned Against Blocking Electoral College Count, Memo Shows

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      Shortly before Jan. 6, Vice President Mike Pence’s chief counsel wrote that holding up the certification of the election results would violate federal law.Former Vice President Mike Pence’s chief counsel laid out in a memo the day before Jan. 6, 2021, that the vice president would violate federal law if he bowed to pressure from President Donald J. Trump to interfere with the certification of Joseph R. Biden Jr.’s victory.The three-page memo, obtained by Politico and confirmed as authentic by The New York Times, included arguments from the chief counsel, Greg Jacob, that Mr. Pence could find himself in a legally precarious situation if he decided to block the certification of the Electoral College results either unilaterally or by calling for a 10-day delay in the proceedings.A lawyer advising Mr. Trump, John Eastman, had insisted that Mr. Pence had the power to take both of those actions, emphasizing the 10-day delay as Jan. 6 grew closer. Mr. Eastman pressed his claims in a meeting with Mr. Pence and Mr. Jacob in the Oval Office on Jan. 4.But Mr. Pence, who in the weeks after the election told Mr. Trump that he did not believe he had such power but would continue researching the matter, was given concrete guidance by his own aides.An image of Greg Jacob, the chief counsel to Vice President Mike Pence, was shown at a hearing on Thursday held by the House committee investigating the Capitol attack.Jim Lo Scalzo/EPA, via ShutterstockMr. Jacob wrote in the memo that Mr. Pence would most likely be overruled by the courts if he made such a move.“In a best-case scenario in which the courts refused to get involved, the vice president would likely find himself in an isolated standoff against both houses of Congress, as well as most or all of the applicable state legislatures, with no neutral arbiter available to break the impasse,” Mr. Jacob wrote in the memo.A spokesman for Mr. Pence declined to comment.Following its prime-time hearing this past week, the House committee investigating the Capitol riot is scheduled to hold three more hearings in the coming week, including one on Thursday at which Mr. Jacob is set to be a key witness.That session is slated to focus on the pressure campaign on Mr. Pence to insert himself into the certification of the Electoral College vote, a proceeding that is usually routine.Mr. Jacob has told the committee that he wrote the memo after the meeting with Mr. Eastman, Politico reported.Mr. Eastman’s conduct has been a focal point of the House investigation into the events that took place leading up to the riot. In March, in a civil case stemming from Mr. Eastman’s efforts to keep the committee from accessing a tranche of emails related to his advice to Mr. Trump, a federal judge said that he and Mr. Trump “more likely than not” committed crimes as they sought to overturn the results of the election.The memo from Mr. Jacob was one in a series that he wrote related to the pressure on Mr. Pence following the 2020 election. One came at the beginning of December, after Mr. Pence asked Mr. Jacob to explore what his authority was in relation to the Jan. 6 certification.Another memo, also obtained by Politico, was written on Jan. 1. It evaluated the various allegations of widespread fraud that Mr. Trump’s advisers had pointed to, including in Georgia, where Mr. Trump repeatedly made claims that officials said were baseless.The memo detailed claims from six key states — the ones for which Mr. Pence’s advisers anticipated that House lawmakers would try to challenge the certification, potentially with support from senators from those states. More

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      Trump Allies Are Still Feeding the False 2020 Election Narrative

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      Fifteen months after they tried and failed to overturn the 2020 election, the same group of lawyers and associates is continuing efforts to “decertify” the vote, feeding a false narrative.A group of President Donald J. Trump’s allies and associates spent months trying to overturn the 2020 election based on his lie that he was the true winner.Now, some of the same confidants who tried and failed to invalidate the results based on a set of bogus legal theories are pushing an even wilder sequel: that by “decertifying” the 2020 vote in key states, the outcome can still be reversed.In statehouses and courtrooms across the country, as well as on right-wing news outlets, allies of Mr. Trump — including the lawyer John Eastman — are pressing for states to pass resolutions rescinding Electoral College votes for President Biden and to bring lawsuits that seek to prove baseless claims of large-scale voter fraud. Some of those allies are casting their work as a precursor to reinstating the former president.The efforts have failed to change any statewide outcomes or uncover mass election fraud. Legal experts dismiss them as preposterous, noting that there is no plausible scenario under the Constitution for returning Mr. Trump to office.But just as Mr. Eastman’s original plan to use Congress’s final count of electoral votes on Jan. 6, 2021, to overturn the election was seen as far-fetched in the run-up to the deadly Capitol riot, the continued efforts are fueling a false narrative that has resonated with Mr. Trump’s supporters and stoked their grievances. They are keeping alive the same combustible stew of conspiracy theory and misinformation that threatens to undermine faith in democracy by nurturing the lie that the election was corrupt.The efforts have fed a cottage industry of podcasts and television appearances centered around not only false claims of widespread election fraud in 2020, but the notion that the results can still be altered after the fact — and Mr. Trump returned to power, an idea that he continues to push privately as he looks toward a probable re-election run in 2024.Democrats and some Republicans have raised deep concerns about the impact of the decertification efforts. They warn of unintended consequences, including the potential to incite violence of the sort that erupted on Jan. 6, when a mob of Mr. Trump’s supporters — convinced that he could still be declared the winner of the 2020 election — stormed the Capitol. Legal experts worry that the focus on decertifying the last election could pave the way for more aggressive — and earlier — legislative intervention the next time around.“At the moment, there is no other way to say it: This is the clearest and most present danger to our democracy,” said J. Michael Luttig, a leading conservative lawyer and former appeals court judge, for whom Mr. Eastman clerked and whom President George W. Bush considered as a nominee to be the chief justice of the United States. “Trump and his supporters in Congress and in the states are preparing now to lay the groundwork to overturn the election in 2024 were Trump, or his designee, to lose the vote for the presidency.”Most of Mr. Trump’s aides would like him to stop talking about 2020 — or, if he must, to focus on changes to voting laws across the country rather than his own fate. But like he did in 2020, when many officials declined to help him upend the election results, Mr. Trump has found a group of outside allies willing to take up an outlandish argument they know he wants to see made.The efforts have been led or loudly championed by Mike Lindell, the chief executive of MyPillow; Michael T. Flynn, Mr. Trump’s first national security adviser; Stephen K. Bannon, the former White House chief strategist; and Boris Epshteyn, an aide and associate of Mr. Trump’s.Another key player has been Mr. Eastman, the right-wing lawyer who persuaded Mr. Trump shortly after the election that Vice President Mike Pence could reject certified electoral votes for Mr. Biden when he presided over the congressional count and declare Mr. Trump the victor instead.Mr. Eastman wrote a memo and Mr. Epshteyn sent an email late last year to the main legislator pushing a decertification bill in Wisconsin, laying out a legal theory to justify the action. Mr. Eastman met last month with Robin Vos, the speaker of the State Assembly, and activists working across the country, a meeting that was reported earlier by The Milwaukee Journal Sentinel.Jefferson Davis, an activist from Wisconsin, said he had asked Mr. Eastman to join the meeting after hearing about his work on behalf of Mr. Trump following the election.“If it was good enough for the president of the United States,” Mr. Davis said in an interview, “then his expertise was good enough to meet with Speaker Vos in Wisconsin on election fraud and what do we do to fix it.”Mr. Vos has maintained that the Legislature has no pathway to decertification, in line with the guidance of its own lawyers.John Eastman, left, has made clear that he has no intention of dropping his fight to show that the election was stolen.Jim Bourg/Reuters“There is no mechanism in state or federal law for the Legislature to reverse certified votes cast by the Electoral College and counted by Congress,” the lawyers wrote, adding that impeachment was the only way to remove a sitting president other than in the case of incapacity.But Mr. Eastman has made clear that he has no intention of dropping his fight to prove that the election was stolen. The House committee investigating the Jan. 6 attack has said his legal efforts to invalidate the results most likely violated the law by trying to defraud the American people. A federal judge recently agreed, calling Mr. Eastman’s actions “a coup in search of a legal theory.”Legal experts say his continued efforts could increase his criminal exposure; but if Mr. Eastman were ever to be charged with fraud, he could also point to his recent work as evidence that he truly believed the election was stolen.“There are a lot of things still percolating,” Mr. Eastman said in an interview with The New York Times last fall. He claimed that states had illegally given people the ability to cast votes in ways that should have been forbidden, corrupting the results. And he pointed to a widely debunked video from State Farm Arena in Atlanta, which he claimed showed that tabulation ballots were run through counting machines multiple times during the election.Charles Burnham, Mr. Eastman’s lawyer, said in a statement that he “was recently invited to lend his expertise to legislators and citizens in Wisconsin confronting significant evidence of election fraud and illegality. He did so in his role as a constitutional scholar and not on behalf of any client.”The fringe legal theory that Mr. Eastman and Mr. Epshteyn are promoting — which has been widely dismissed — holds that state lawmakers have the power to choose how electors are selected, and they can change them long after the Electoral College has certified votes if they find fraud and illegality sufficiently altered the outcome. The theory has surfaced in multiple states, including several that are political battlegrounds.As in Wisconsin, state legislators in Arizona drafted resolutions calling for the decertification of the 2020 election. In Georgia, a lawsuit sought to decertify the victories of the Democratic senators Jon Ossoff and Raphael Warnock. And Robert Regan, a Republican favored to win a seat in the Michigan House, has said he wants to decertify the 2020 election either through a ballot petition or the courts.Mr. Bannon, Mr. Lindell and Mr. Epshteyn have repeatedly promoted decertification at the state level on Mr. Bannon’s podcast, “War Room,” since last summer, pushing it as a steady drumbeat and at times claiming that it could lead to Mr. Trump being put back into office. They have described the so-called audit movement that began in Arizona and spread to other states as part of a larger effort to decertify electoral votes.“We are on a full, full freight train to decertify,” Mr. Epshteyn said on the program in January. “That’s what we’re going to get. Everyone knows. Everyone knows this election was stolen.”Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 3Debating a criminal referral. More

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      Will Democrats Soon Be Locked Out of Power?

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      Throughout the Trump era it was a frequent theme of liberal commentary that their political party represented a clear American majority, thwarted by our antidemocratic institutions and condemned to live under the rule of the conservative minority.In the political context of 2016-20, this belief was overstated. Yes, Donald Trump won the presidential election of 2016 with a minority of the popular vote. But more Americans voted for Republican congressional candidates than Democratic congressional candidates, and more Americans voted for right-of-center candidates for president — including the Libertarian vote — than voted for Hillary Clinton and Jill Stein. In strictly majoritarian terms, liberalism deserved to lose in 2016, even if Trump did not necessarily deserve to win.And Republican structural advantages, while real, did not then prevent Democrats from reclaiming the House of Representatives in 2018 and the presidency in 2020 and Senate in 2021. These victories extended the pattern of 21st century American politics, which has featured significant swings every few cycles, not the entrenchment of either party’s power.The political landscape after 2024, however, might look more like liberalism’s depictions of its Trump-era plight. According to calculations by liberalism’s Cassandra, David Shor, the convergence of an unfavorable Senate map for Democrats with their pre-existing Electoral College and Senate disadvantages could easily produce a scenario where the party wins 50 percent of the congressional popular vote, 51 percent of the presidential vote — and ends up losing the White House and staring down a nearly filibuster-proof Republican advantage in the Senate.That’s a scenario for liberal horror, but it’s not one that conservatives should welcome either. In recent years, as their advantages in both institutions have increased, conservatives have defended institutions like the Senate and the Electoral College with variations of the argument that the United States is a democratic republic, not a pure democracy.These arguments carry less weight, however, the more consistently undemocratic the system’s overall results become. (They would fall apart completely in the scenario sought by Donald Trump and some of his allies after 2020, where state legislatures simply substitute their preferences for the voters in their states.)The Electoral College’s legitimacy can stand up if an occasional 49-47 percent popular vote result goes the other way; likewise the Senate’s legitimacy if it tilts a bit toward one party but changes hands consistently.But a scenario where one party has sustained governing power while lacking majoritarian support is a recipe for delegitimization and reasonable disillusionment, which no clever conservative column about the constitutional significance of state sovereignty would adequately address.From the Republican Party’s perspective, the best way to avoid this future — where the nature of conservative victories undercuts the perceived legitimacy of conservative governance — is to stop being content with the advantages granted by the system and try harder to win majorities outright.You can’t expect a political party to simply cede its advantages: There will never be a bipartisan constitutional amendment to abolish the Senate, on any timeline you care to imagine. But you can expect a political party to show a little more electoral ambition than the G.O.P. has done of late — to seek to win more elections the way that Ronald Reagan and Richard Nixon won them, rather than being content to keep it close and put their hopes in lucky breaks.Especially in the current climate, which looks dire for the Democrats, the Republicans have an opportunity to make the Electoral College complaint moot, for a time at least, by simply taking plausible positions, nominating plausible candidates and winning majorities outright.That means rejecting the politics of voter-fraud paranoia — as, hopefully, Republican primary voters will do by choosing Brian Kemp over David Perdue in the Georgia gubernatorial primary.It means rejecting the attempts to return to the libertarian “makers versus takers” politics of Tea Party era, currently manifested in Florida Senator Rick Scott’s recent manifesto suggesting tax increases for the working class — basically the right-wing equivalent of “defund the police” in terms of its political toxicity.And it means — and I fear this is beyond the G.O.P.’s capacities — nominating someone other than Donald Trump in 2024.A Republican Party that managed to win popular majorities might still see its Senate or Electoral College majorities magnified by its structural advantages. But such magnification is a normal feature of many democratic systems, not just our own. It’s very different from losing the popular vote consistently and yet being handed power anyway.As for what the Democrats should do about their disadvantages — well, that’s a longer discussion, but two quick points for now.First, to the extent the party wants to focus on structural answers to its structural challenges, it needs clarity about what kind of electoral reforms would actually accomplish something. That’s been lacking in the Biden era, where liberal reformers wasted considerable time and energy on voting bills that didn’t pass and also weren’t likely to help the party much had they been actually pushed through.A different reform idea, statehood for the District of Columbia and Puerto Rico, wouldn’t have happened in this period either, but it’s much more responsive to the actual challenges confronting Democrats in the Senate. So if you’re a liberal activist or a legislator planning for the next brief window when your party holds power, pushing for an expanded Senate seems like a more reasonable long ball to try to train your team to throw.Second, to the extent that there’s a Democratic path back to greater parity in the Senate and Electoral College without structural reform, it probably requires the development of an explicit faction within the party dedicated to winning back two kinds of voters — culturally conservative Latinos and working-class whites — who were part of Barack Obama’s coalition but have drifted rightward since.That faction would have two missions: To hew to a poll-tested agenda on economic policy (not just the business-friendly agenda supported by many centrist Democrats) and to constantly find ways to distinguish itself from organized progressivism — the foundations, the activists, the academics — on cultural and social issues. And crucially, not in the tactical style favored by analysts like Shor, but in the language of principle: Rightward-drifting voters would need to know that this faction actually believes in its own moderation, its own attacks on progressive shibboleths, and that its members will remain a thorn in progressivism’s side even once they reach Washington.Right now the Democrats have scattered politicians, from West Virginia to New York City, who somewhat fit this mold. But they don’t have an agenda for them to coalesce around, a group of donors ready to fund them, a set of intellectuals ready to embrace them as their own.Necessity, however, is the mother of invention, and necessity may impose itself upon the Democratic Party soon enough.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTOpinion) and Instagram. More

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      in Elections

      Memos Show Roots of Trump’s Focus on Jan. 6 and Alternate Electors

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      Just over two weeks after Election Day, lawyers working with the Trump campaign set out a rationale for creating alternate slates of electors as part of an effort to buy time to overturn the results.Fifteen days after Election Day in 2020, James R. Troupis, a lawyer for the Trump campaign in Wisconsin, received a memo setting out what became the rationale for an audacious strategy: to put in place alternate slates of electors in states where President Donald J. Trump was trying to overturn his loss.The memo, from another lawyer named Kenneth Chesebro, may not have been the first time that lawyers and allies of Mr. Trump had weighed the possibility of naming their own electors in the hopes that they might eventually succeed in flipping the outcome in battleground states through recounts and lawsuits baselessly asserting widespread fraud.But the Nov. 18 memo and another three weeks later are among the earliest known efforts to put on paper proposals for preparing alternate electors. They helped to shape a crucial strategy that Mr. Trump would embrace with profound consequences for himself and the nation.The memos show how just over two weeks after Election Day, Mr. Trump’s campaign was seeking to buy itself more time to undo the results. At the heart of the strategy was the idea that their real deadline was not Dec. 14, when official electors would be chosen to reflect the outcome in each state, but Jan. 6, when Congress would meet to certify the results.And in that focus on Jan. 6 lay the seeds of what became a pressure campaign on Vice President Mike Pence to accept the validity of a challenge to the outcome and to block Congress from finalizing Joseph R. Biden Jr.’s victory — a campaign that would also lead to a violent assault on the Capitol by Trump supporters and an extraordinary rupture in American politics.“It may seem odd that the electors pledged to Trump and Pence might meet and cast their votes on Dec. 14 even if, at that juncture, the Trump-Pence ticket is behind in the vote count, and no certificate of election has been issued in favor of Trump and Pence,” the Nov. 18 memo said. “However, a fair reading of the federal statutes suggests that this is a reasonable course of action.”Read the Nov. 18 Memo on Alternate Trump ElectorsThe memo is among the earliest known efforts to put on paper proposals for preparing alternate slates of Trump electors in Biden-won states.Read Document 7 pagesBoth federal prosecutors and the House committee investigating the events of Jan. 6 have recently confirmed that they are examining the effort to submit alternate slates of electors to the Electoral College. On Friday, congressional investigators issued subpoenas to 14 people who claimed to be official Trump electors in states that were actually won by Mr. Biden.The two memos, obtained by The New York Times, were used by Mr. Trump’s top lawyer, Rudolph W. Giuliani, and others like John Eastman as they developed a strategy intended to exploit ambiguities in the Electoral Count Act, according to a person familiar with the matter.The memos were initially meant to address Mr. Trump’s challenge to the outcome in Wisconsin, but they ultimately became part of a broader conversation by members of Mr. Trump’s legal team as the president looked toward Jan. 6 and began to exert pressure on Mr. Pence to hold up certification of the Electoral College count.Neither Mr. Troupis nor Mr. Chesebro responded to requests for comment about the memos. Even before they were written, legislative leaders in Arizona and Wisconsin sought advice from their own lawyers about whether they had the power to alter slates of electors after the election took place and were effectively told they did not, according to new documents obtained by American Oversight, a nonprofit watchdog group.Mr. Trump has long embraced the scheme. Just this past weekend, he issued a statement reiterating that he was justified in using the process in Congress on Jan. 6 to challenge the outcome and asserting that Mr. Pence “could have overturned the election.”The plan to employ alternate electors was one of Mr. Trump’s most expansive efforts to stave off defeat, beginning even before some states had finished counting ballots and culminating in the pressure placed on Mr. Pence when he presided over the joint congressional session on Jan. 6. At various times, the scheme involved state lawmakers, White House aides and lawyers like Mr. Chesebro and Mr. Troupis.James R. Troupis, a lawyer for the Trump campaign in Wisconsin, sought to invalidate the use of absentee ballots in Milwaukee and Dane Counties.Pool photo by Greg NashIn the weeks after the election, Mr. Troupis oversaw the Trump campaign’s recount effort in Wisconsin, which ultimately showed that Mr. Biden had won by more than 20,000 votes. In early December 2020, Mr. Troupis filed a lawsuit on behalf of the Trump campaign that sought to invalidate the use of absentee ballots in Milwaukee and Dane Counties, which both have large numbers of Black voters.At a hearing in front of the Wisconsin Supreme Court, one justice, Rebecca Dallet, noted that Mr. Troupis had not sought to invalidate votes in Wisconsin’s 70 other counties but had focused only on the “most nonwhite, urban” parts of the state. Another justice, Jill Karofsky, echoed that sentiment, telling Mr. Troupis that his lawsuit “smacks of racism.”In late December, Mr. Chesebro joined Mr. Troupis in asking the U.S. Supreme Court to review the question of whether competing slates of electors in Wisconsin and six other contested states could be considered on Jan. 6. The high court denied their request.The language and suggestions in the memos from Mr. Chesebro to Mr. Troupis closely echo tactics and talking points that were eventually adopted by Mr. Trump’s top lawyers.The November memo, for example, called Jan. 6 the “hard deadline” for settling the results of the election and advised that the Trump campaign had nearly two months for “judicial proceedings” to challenge the outcome. It also suggested that Trump-friendly electors in Wisconsin needed to meet in Madison, the state capital, on Dec. 14, 2020, the day the Electoral College would be voting.The second memo was dated Dec. 9, 2020, and expanded on the plan. It set forth an analysis of how to legally authorize alternate electors in six key swing states, including Wisconsin. It noted that the scheme was “unproblematic” in Arizona and Wisconsin, “slightly problematic” in Michigan, “somewhat dicey” in Georgia and Pennsylvania, and “very problematic” in Nevada.Read the Dec. 9 Memo on Alternate Trump ElectorsThe document elaborated on an earlier memo about preparing alternate slates of Trump electors in Biden-won states.Read Document 5 pagesRepresentative Pete Aguilar, Democrat of California and a member of the committee investigating the Jan. 6 attack on the Capitol, said the panel was examining the origins of the plans to put forward alternate electors. The panel already has in its possession memos that were written by Mr. Eastman and another Trump lawyer, Jenna Ellis, in late December 2020 and early January 2021; those memos laid out steps for Congress to take to cast aside Mr. Biden’s electors in key swing states.“We know this was a coordinated effort on behalf of the former president and those around him to overturn a free and fair election,” Mr. Aguilar said. “We continue to learn new and more details. It’s incredibly troubling to know the lengths they went to support these efforts in multiple states.”Mr. Aguilar said that he and others on the panel believed the plan to use the electors was connected to other aspects of Mr. Trump’s effort to remain in power, such as proposals to seize voting machines and to put intense pressure on Mr. Pence to throw out legitimate electoral votes.“We need to know the depth of that plan, and we need to know the different ways in which they sought to operationalize their theory,” he said. More