Could America’s Next Election be Stolen?

Some Democratic election observers think so.

Benjy Sarlin, policy editor for NBC News, claims “What’s keeping democracy experts up most at night? An overturned election.” While one would think the inability of a sitting President to get his own party’s state election officials to cooperate in the attempt this past go-around would provide solace, observers point to changes underway to remove those guard rails.

There’s no legal avenue for Trump to reverse the 2020 results. But a half-dozen scholars who study democracy and election laws told NBC News they are increasingly worried that 2024 could be a repeat of 2020, only with a party further remade in the former president’s image and better equipped to sow disorder during the process and even potentially overturn the results.

“Obviously the insurrection was horrific in its violence and assault on democracy, but it didn’t disrupt the true winner of the election,” said Edward B. Foley, a professor at Moritz College of Law at Ohio State University who researches election law. “What you don’t want is it to have been a rehearsal.”

Nightmare scenarios include local or state officials refusing to certify votes, governors and state legislatures submitting electoral votes that disagree with each other or overrule the apparent vote counts, fights over the legitimacy of judges overseeing the process and the House and Senate disagreeing on the winner. A chaotic transition could create an opening for further violence, either from extremists attempting to disrupt the process again or mass unrest if the winner is viewed as illegitimate.

“We should not pretend these dangers are fantastical or that these are absurd hypotheticals,” Rick Hasen, a law professor at the University of California, Irvine. “Given what we saw Trump actually do in 2020, these things are now within the realm of possibility and need to be legislated against and organized against so we have a fair election process going forward.”

Rather clearly, far too many Republican politicians at the national and state levels are going along with the Big Lie. That’s worrisome. But, again, the “insurrection” amounted to a hissy fit and all the legal challenges were laughed out of court. If that was a “dress rehearsal,” it’s time for a recasting.

New and proposed laws in states like Georgia and Arizona have sought to wrest power from state and local election officials, some of whom played a role in resisting the former president’s demands last election.

Republicans face significant pressure from their base to make these types of systemic changes — and potentially go much further. Lee Drutman, a senior fellow at the New America foundation, released survey data last month that found 46 percent of Republicans supported empowering state legislatures to overturn election results in states President Joe Biden won, as Trump demanded they do in 2020.

“At a psychological level, there’s a sense that ‘we’re the legitimate Americans and the natural majority,’ and the only way the other side could win is through fraud,” Drutman said.

While that attitude is far too pervasive, Drutman is viewing the survey data through a partisan lens. His own poll shows that Republicans in the states in question legitimately think the election was stolen from Trump, so they naturally want a remedy for that. That’s very different than wanting “state legislatures to overturn election results in states President Joe Biden won.” Regardless, the mere fact that so many believe this Big Lie—and think something needs to be done to prevent Democrats from stealing another election—is highly problematic.

Still, it seems the experts are spinning fantasies.

Some observers worry the party’s increased willingness to even entertain these scenarios could create perverse incentives in which state or local officials try to boost the odds of a poorly administered election that would give partisan leaders more flexibility to intervene.

“Federal law contains an arcane provision that allows state legislatures, in certain circumstances, to directly appoint presidential electors after Election Day if there has been a ‘failed’ election,” Lisa Manheim, a professor at the University of Washington School of Law, said. “I worry about state legislatures trying to use errors in election administration — including errors the legislature itself has permitted or even facilitated — as a pretextual ground for triggering this provision.”

Critics argue that proposed state laws in places like Texas, for example, that would impose new criminal penalties on election administrators could discourage people from taking crucial positions, especially given the abuse directed toward these typically nondescript workers after the 2020 race.

Hasen and other experts have called on Congress to pursue reforms to make it harder to challenge state results, clarify ambiguities in how disputes are mediated and require states to provide a clear paper trail for all ballots so disputes can be reviewed transparently by courts and independent observers. Most of these concerns are distinct from voting reform bills pursued by Democrats in Congress, which have been blocked by Republicans.

Regardless of the likelihood of a conspiracy to steal the next election, it absolutely makes sense for Congress to establish uniform rules ahead of time. Alas, the filibuster makes that exceedingly unlikely.

And, yes, the climate makes fealty to the honest election returns less likely than it was just months ago:

If a state submits questionable results or there’s a disagreement between the state legislature and governor, it will be up to the House and Senate to sort it out. In the event they can’t agree on approving competing claims, however, the law defers to the governor. If a state cannot submit its electoral votes in time, the law also suggests a state legislature may step in later.

In 2020, every governor and state legislature accepted the election results, but the midterms could reshuffle the landscape. Trump has sought to punish Republican incumbents like Georgia Gov. Brian Kemp and Secretary of State Brad Raffensperger with primary challenges. Trump has also lashed out at otherwise supportive Republican legislators in states like Wisconsin and Michigan who have affirmed the results.

“The fact that it held in 2020 doesn’t guarantee it will hold in 2024,” Omar Wasow, an assistant professor of politics at Princeton University, said. “You need ethical people in these jobs, and we’re seeing a lot of ethical people leaving in part because they’ve been threatened or attacked by partisans or because the level of vitriol they’ve been subject to is not worth the effort.”

FILED UNDER: US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Scott says:

    I’m feeling far more pessimistic than you are. So much depends on upholding norms, never mind laws. Most of your argument revolves around government officials behaving appropriately.

    The willingness to overturn and ignore what we call common sense norms seems to be huge out there. I mean, if a state legislature/government wishes to ignore the court rulings, there is not much to stop them. We obey the courts because that is what we do, not because there is any inherent power there to force obedience.

    There are large forces out there who think they have to “Save America”. That is the permission structure right there to do anything, break anything to accomplish that.

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  2. Mikey says:

    @Scott:

    There are large forces out there who think they have to “Save America”. That is the permission structure right there to do anything, break anything to accomplish that.

    Poll shows disturbing level of support for political violence

    Twenty-nine percent of those polled indicated they completely or somewhat agree with the statement: “If elected leaders will not protect America, the people must do it themselves even if it requires taking violent actions.”…

    …A majority, or 55 percent, of Republicans support use of force as a means to stop the decline of “the traditional American way of life,”…

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  3. JohnMcC says:

    “There are large forces out there who think they have to ‘Save America’. (The willingness to over turn and ignore what we call…norms) is the permission structure right there to do anything, break anything to accomplish that.”

    Started to make a comment. Liked that better. If our gracious host feels optimistic that a future attempt to overturn an election will be defeated quickly… well, OK.
    But there ARE plenty of well-funded folks out there trying their best to succeed in some future moment.

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  4. drj says:

    @JohnMcC:

    If our gracious host feels optimistic that a future attempt to overturn an election will be defeated quickly… well, OK.

    Not to be a dick about it, but he was quite adamant that it couldn’t hurt very much to let Trump “blow off some steam” regarding the “stolen” election – which got us 1/6.

    Unsurprisingly, I don’t share his optimism.

    Also, this:

    His own poll shows that Republicans in the states in question legitimately think the election was stolen from Trump, so they naturally want a remedy for that. That’s very different than wanting “state legislatures to overturn election results in states President Joe Biden won.”

    …is a distinction without a difference, as the end result would be exactly the same.

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  5. While that attitude is far too pervasive, Drutman is viewing the survey data through a partisan lens. His own poll shows that Republicans in the states in question legitimately think the election was stolen from Trump, so they naturally want a remedy for that. That’s very different than wanting “state legislatures to overturn election results in states President Joe Biden won.”

    But, of course, the problem is that those two things (states they think were stolen and states where Biden won) are the same thing. I take the point about what the survey data are reflecting (i.e., believe that something is wrong with the system) but the fact that they are factually incorrect does not change the reality that they do, in fact, want “state legislatures to overturn election results in states President Joe Biden won.”

    This is the problem: the GOP is actively cultivating the Big Lie (as you acknowledge) and there is a movement afoot to make it easier for state-level forces to avoid all that losing in court you rightly mention by empowering partisan actors to directly meddle in the elections process.

    I am not quite in the “they are planning to steal the election” camp, but the entire situation is extremely troubling.

    In other words, I do think that the guardrails are being further weakened.

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  6. drj says:

    @Steven L. Taylor:

    I am not quite in the “they are planning to steal the election” camp

    My take is that they certainly would if the poltical isn’t deemed too high.

    For the GOP, it’s now a matter of expediency rather than principles or morality.

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  7. SKI says:

    I echo the other commentators who are suggesting that James is, once again, overly sanguine in blithely dismissing this as a real threat or concern.

    Ultimately, that they “legitimately think the election was stolen” doesn’t matter when they start with a worldview that any result where they don’t win is, by definition, illegitimate. That any loss must be the result of fraud or evil. That the only true and proper world is one in which their supremacy is guaranteed. This worldview is both widespread in this country and a recipe for the destruction of democracy.

    The sad reality is that there actually is a credible claim in the other direction. We all know that the game is actually rigged in the favor of the GOP in the Senate and, to a lesser extent, the House – which means that the Presidency is as well given how the Electoral college works. And yet, it is not the Democrats who have a broad, mainstream movement to attack the very foundation fo the system. sigh.

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  8. MarkedMan says:

    The Republican Party is now entirely the Southern Party, and that Party is one that obtains and retains power by subverting elections including preventing non-supporters from voting, “losing” ballots from the “wrong people” and so forth.

    James, it is all but inevitable that as they become less popular in their own backyards they will increase their use of farcically legal election theft.

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  9. Barry says:

    James, I’m continually amazed at you, as an expert in political sciences watches what we thought of as solid walls turn out to be made of rotten wood, if not paper maiche.

    Did not January 6, and the GOP follow-up make any impression whatsoever?

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  10. Daryl and his brother Darryl says:

    This blithely ignores the fact that they are already stealing elections.
    In Maine a binding resolution to expand Medicaid passed, and LePage simply ignored it.
    In Florida 65% of the voters chose to restore the right to vote for felons who has served their time. In a bait and switch DeSantis and the Republican Legislature ignored the will of the people and decided that felons had to pay their fines and fees before being restated…fines and fees the state was unable to calculate and, ipso facto, no one could pay.
    In 2016 the duly elected President nominated a Justice to the SCOTUS. Republicans refused to allow the elected POTUS a consideration of his nominee, ostensibly because it was an election year. In the very next election cycle those very same Republicans rammed thru a SCOTUS nominee WHILE THE ELECTION WAS ONGOING. SCOTUS appointments are one of the most important roles of an Executive; if this isn’t part-and-parcel of stealing elections, I don’t know what is. Certainly it is theft of a co-equal branch of Government…theft being theft, and all.
    So please, spare me the “this is unlikely to happen” happy talk.
    Given a more competent Executive, surrounded by less scrupulous attorneys, and we are extremely likely to find ourselves laughing at the quaintness of the above argument.

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  11. Michael Cain says:

    @MarkedMan:

    The Republican Party is now entirely the Southern Party

    The Midwest would like a word…

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  12. MarkedMan says:

    @Michael Cain: What I mean by “The Republican Party is now the Southern Party” is that the Republican Party has completely adapted the Jim Crow tactics and mind set of the Southern States. As Republican Senator Jacob Javits warned in 1964, the Southern Strategy was flawed from the start. The idea that the Party could obtain the votes of Southern racists but not become tainted by their allegiance always an impossible deal. That deal said that the Republican Party would not press for civil rights and justice for all and turn a blind eye to Jim Crow in exchange for the mass defection of white Southerners from the Democratic Party. By Reagan’s time the strategy was already collapsing, with the embrace of the Southern Evangelical Moral Majority as a legislative partnership, and Reagan’s own wink and nod to the murderers of civil rights workers. Today the transformation is complete. The entire fabric of the Republican Party across the whole nation is indistinguishable from the Southern Jim Crow mindset of the 1950’s.

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  13. Daryl and his brother Darryl says:

    Six months ago a violent mob, incited by a President that openly colluded with Russia to get elected, stormed our Capitol in an attempt to stop certification of a free and fair election, hang the Vice-President, and assassinate members of Congress. 5 people died. 140 officers were injured, including one who lost an eye.
    It was the first transfer of power in this nation’s history that was not peaceful.
    Our host calls that “a hissy fit.”
    Tomayto, tomahto.

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  14. Modulo Myself says:

    There’s no plan. There’s just a loaded gun left out in the open in a room full of children. What can go wrong?

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  15. Kylopod says:

    @MarkedMan:

    What I mean by “The Republican Party is now the Southern Party” is that the Republican Party has completely adapted the Jim Crow tactics and mind set of the Southern States.

    I can’t think of a better illustration of this than the incident last year in which a Republican lawmaker in Michigan wore a Confederate face mask. So it’s not just that the modern GOP has adopted tactics and mindset that are analogous to that of the Jim Crow South, they’ve in many ways been taken over by the actual political culture of the South, regardless of what region they happen to come from. That’s how you get Republicans a long way from the Confederacy engaging in pro-Confederate apologia and dogwhistles. There isn’t the kind of regional intra-party splits that once existed in the GOP (or the Democratic Party, for that matter–that’s why Southern Dems like Jon Ossoff and Raphael Warnock are a lot more liberal than the kinds of Dems who used to get elected in those states); it’s basically a unified party across the country (and I’m not just talking about their being pro-Trump–this tendency predates Trump), but it’s unified around a Southern right-wing outlook.

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  16. Kathy says:

    It’s not a question of whether some Republican-controlled states will attempt to steal an election, but what the response from the rest of the party will be, and what the Democrats will do about it.

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  17. Kylopod says:

    I think that in some sense, a lot of people both overestimate and underestimate the authoritarian threat posed by today’s GOP. I noticed this throughout Trump’s presidency, even before his coup attempt. I often found myself arguing with liberals who felt Trump and his party were some kind of omnipotent threat that Dems were powerless in the face of. I pointed out that Trump clearly wanted to do a lot more authoritarian things than he even came close to succeeding at–partly because there were certain guardrails protecting against his attempts, and partly because he lacked the kind of strategic skill needed to override those guardrails.

    The examples are practically endless. Remember his tweet declaring “Our great companies are hereby ordered to immediately start looking for an alternative to China”? Or his proposal to dump illegal immigrants in sanctuary cities? Or his trying to fire Mueller? Or his attempts to block people on Twitter? Or his statements that SNL doesn’t have the right to make fun of him? Or his numerous threats to governors?

    The list of times he pretended to exercise powers he simply did not have could fill volumes, as could all the things he obviously would have loved to do but simply lacked the power to do. Such as forcing all governors everywhere to lift lockdowns or mask mandates. Or coming out with totally bogus statistics on Covid-19 cases and deaths. Or shutting down the media, for that matter. His capacity to shout “Fake News!” on Twitter didn’t prove he had unlimited power.

    It might sound like I’m being complacent, but actually the opposite is true: I think that by exaggerating the threat he poses, and by focusing on only the most cartoonish, extreme scenarios, we overlook the very real damage he has done to our democracy and may continue to do. The 2020 election is a perfect example of that: think of all the bed-wetting here (and I admit I engaged in some of it myself) over Trump possibly executing a coup: the claim that he’d postpone the election, or sabotage ballots, or send out militia squads. You can say we came uncomfortably close to an actual coup, but I’d disagree–at least for the stuff that got the most attention, including his threats to state officials or the Jan. 6 insurrection, which posed a very real danger to a lot of people but didn’t really stand a serious chance of overturning the election. I do think people overlook the ways in which the GOP was actually stealing the election, such as the undermining of the vote-by-mail system, both through state laws and through Louis DeJoy’s sabotage of the Post Office. I believe this was a significant, and under-appreciated and under-studied reason for why the election was a lot closer than the polls suggested.

    A while back I called what the GOP does the cockroach strategy. When there are roaches in your apartment, you’ll succeed in squashing a lot of them–but there are so many of them they ultimately overwhelm these attempts, and that’s part of what contributes to how difficult they are to get rid of. I think that’s a good description of the GOP’s authoritarian tendencies–they try a lot of things that don’t work, but they do it so much and so often and so relentlessly that they succeed in a lot more than they reasonably should.

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  18. Modulo Myself says:

    The real problem is going to be that Trump in 2020 was probably the high-water mark for the GOP. They believe that the gains in Hispanics and the enthusiasm amongst the base are reproducible without Trump. I don’t see it. Trump was cruel, mean, and a liar. However, he also has charm and he’s funny. None of the guys doing his act are doing the second part. They can’t even come close. Ron DeSantis can’t sidle up to an aging Botoxed socialite and start talking amusing shit about one of her friends and how much she’s had done. He’s a used-car salesman, full of cheap schmaltz. He’s never made anybody with money laugh.

    I think that 2022 is going to be a huge blow to the GOP, even with Trump on the sidelines. And I bet he won’t run in 2024 and it’s going be a bigger shitshow, which might lead to everybody just going with overturning the election.

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  19. gVOR08 says:

    His own poll shows that Republicans in the states in question legitimately think the election was stolen from Trump, so they naturally want a remedy for that. That’s very different than wanting “state legislatures to overturn election results in states President Joe Biden won.”

    The banksters didn’t intend to destroy the economy in 2008. But they did. Don’t confuse intent with effect. I don’t see Republicans (with exceptions) as preparing a coup so much as pandering to the base. But they’re taking each imaginary problem Trump bitched about and passing a law to address it.

    To actually overturn a presidential election they would need the right setup, a close election with the D winning enough states with R legislatures to swing the EC. If they get a suitable setup, do you really think they won’t try to use the tools they put in place? Or at the state level if they stand to lose the legislature by one or two seats?

    If push comes to shove in 2024, or 2040, do you think R state legislators will hesitate to use any tools available?

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  20. gVOR08 says:

    @Mikey: You quote The Hill,

    …A majority, or 55 percent, of Republicans support use of force as a means to stop the decline of “the traditional American way of life,”…

    I expect that some elements of the Kochtopus or other RW entities are nurturing relationships with, and feeding money to, the III Percenters, or the Oath Keepers, or some of a hundred similar groups that are still under the radar. The Tea Party with AR-15s and flak vests instead of drums and tricorne hats.

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  21. MarkedMan says:

    @Kylopod:

    hey’ve in many ways been taken over by the actual political culture of the South

    This is what I, in my clumsy way, was attempting to say.

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  22. SteveCanyon says:

    Regardless of the likelihood of a conspiracy to steal the next election, it absolutely makes sense for Congress to establish uniform rules ahead of time. Alas, the filibuster makes that exceedingly unlikely.

    Not trying to be pedantic but let’s call this what it is. It’s Republicans in Congress who make this exceedingly unlikely. We should stop treating the filibuster as a kind of blanket excuse.

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  23. Jay L Gischer says:

    Whatever beliefs about a stolen election people might have, those beliefs are based on lies, knowing lies, made and repeated by dozens of leaders beyond Trump, which makes them the fruit of a poison tree, and illegitimate.

    I just watched the NYT “Day of Rage” and it’s harrowing. After the anger was the horror at how deceived so many of these people are.

    I see that just yesterday Trump is calling for the officer who shot Ashli Babbit to be lynched. I watched that shoot. It was completely legit. I shake my head in wonder at what she expected would happen.

    People do need to believe that elections are conducted honestly and fairly. Who is undermining that belief? It’s not Democrats. This is a classic case of start the fire, then call the fire department, then put the fire out. (or are they just pouring more gas on it?).

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  24. Sleeping Dog says:

    If the there is a stolen election in 24 the most important factor will be the actions of the losing candidate. Assuming a Dem victory, if on the morning of the day following the election, the R candidate concedes, it will be over and the possible machinations of state legislatures will be for naught. If TFG is the candidate there is real danger, but others? No one can say definitively what a different candidate will do.

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  25. Chip Daniels says:

    @MarkedMan:
    My only quarrel with that observation is that we who live in places like California often forget how instrumental our own residents have been in creating the current rightwing culture, wholly separate and apart from the South.

    Los Angeles has long been, and still is, a deeply segregated city, where white and black residents inhabit very different worlds.

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  26. Kylopod says:

    @Chip Daniels: I think a lot of people forget how prevalent racism has long been in non-Southern big cities like LA, Chicago, Detroit, and so on. But it isn’t necessarily the Southern variety of racism, and there are important differences between the two. (By different I don’t mean better or worse–I mean different.)

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  27. Barry says:

    @Kylopod: “You can say we came uncomfortably close to an actual coup, but I’d disagree–at least for the stuff that got the most attention, including his threats to state officials or the Jan. 6 insurrection, which posed a very real danger to a lot of people but didn’t really stand a serious chance of overturning the election. I do think people overlook the ways in which the GOP was actually stealing the election, such as the undermining of the vote-by-mail system, both through state laws and through Louis DeJoy’s sabotage of the Post Office. ”

    Not that DeJoy is still there, and still sabotaging the Post Office.

    The thing that James does not see is that a number of barriers held, and that the GOP has been systematically dismantling them.

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  28. Kylopod says:

    @Barry: Even though it isn’t happening as fast as many of us would like, DeJoy’s days at the PO are numbered. I also think the impact of his shenanigans on the vote is going to be less important as we pull out of the pandemic.

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  29. Gustopher says:

    Let’s assume that the Republicans voting not to confirm electors are just playing to the crazies knowing it will never make a difference.

    What happens when the performative efforts to “steal” the election actually end up with enough performers in the right places that the election is stolen?

    If you play enough games of Russian Roulette, it’s going to go too far eventually.

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  30. Kurtz says:

    @Chip Daniels: @Kylopod:

    Yes.

    So, the differences are actually really important. The context of recent discussions about CRT should make that clear.

    The knife fights that break out among all of us here over language, slogans, and activism should clue some of the regulars about the salience of those distinctions and what it means for the broader Left. But…it likely won’t.

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  31. de stijl says:

    If I need to bolt it will be to Iceland. I have a proven past of ex-pat quasi residency where I was not arrested once for anything.

    Was gonna add a wink, but no need. I was a very good boy there. Is magic fungi really a crime if no one sees and you are in the most remote place imaginable in a tent all by yourself on a three day weekend?

    Besides I have an idea for a bar and grill for downtown Reyk that would kill big.

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  32. Kurtz says:

    @de stijl:

    Is magic fungi really a crime if no one sees and you are in the most remote place imaginable in a tent all by yourself on a three day weekend?

    Kudos for being able to handle that.

    That would be inviting serious trouble for me. Distinct possibility of permanent consequences for me.

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