Category Archives: election subversion risk

Must-Read Ben Ginsberg: “Republicans in Congress Should Update the Electoral Count Act Before It’s Too Late”

Great Ben Ginsberg piece in NRO:

Donald Trump should want the Electoral Count Act of 1887 amended. And he should want it done even though his some of his Democratic opponents may want the same thing.

Designed to govern Congress’s tabulation of Electoral College votes — including disputes between the chambers — the aged law is a swamp of ambiguity. Its byzantine, vague, and muddled provisions do not provide sufficient answers to crucial questions that could arise in a genuinely close election. Despite the fact that the former president’s attempts to exploit those shortcomings failed in 2020, he and all Republicans should be haunted by the blueprint that he has created for his opponents if he were to run for office again in 2024.

Republicans should not deceive themselves by thinking the current state of this law automatically works to their advantage. While many of them used it offensively on January 6, 2021, they did so because they were trailing in Electoral College votes. They poked at real flaws, and while not successful because the vice president rebuffed Trump’s legally unsupportable command that the states’ certifications be rejected, Republicans did show how the system can be maneuvered.

Republicans should be in favor of clarifying the system now, if for no other reason than they will not be in as strong a position as they were in 2020.

For starters, a Democratic vice president will be presiding over the Senate when the Electoral College votes are opened. Suppose Trump runs again, and wins. Now, suppose Vice President Harris believes that Trump’s reelection represents an existential threat to the county and does what Trump couldn’t persuade Mike Pence to do.

As of now, neither party can know whether its presidential candidate will be ahead or behind in Electoral College votes or whether it will control the Senate and House in January 2025 to resolve Electoral College vote disputes in its favor. And Trump will not be the commander in chief in 2024 able to wield the threat of invoking the Insurrection Act as a not-so-subtle inducement to —and cover for — allies in Congress if he doesn’t like the way the electoral-vote count is going.

Even Ramesh Ponnuru, who thinks concerns about Trump subverting the 2024 election results are way overblown, favors ECA reform:

To the extent that Trump’s post-election campaign compels any policy response at all, it is a reform of the Electoral Count Act of 1887, which contains confusions and imperfections that an unscrupulous and nimble political leader could exploit. It should, for example, be amended so that it takes more than one senator to force a vote on an objection to a state’s electors. The bar for Congress to throw out a state’s electors should also be raised.

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“Trump’s judicial campaign to upend the 2020 election: A failure, but not a wipe-out.”

Russell Wheeler, Brookings Institute

Wheeler shows that while “Trump’s election litigation efforts failed decisively[,] . . . more judges than is generally assumed found his lawyers’ arguments persuasive.” The key point is that judicial independence is unlikely to be impervious to either electoral politics or legal advocacy overtime.

“In short, although Trump clearly lost the 2020 election litigation battle, he received more judicial support than generally realized. That and other factors may suggest rosier prospects for him in court battles over the 2024 election.”

Jamelle Bouie at the N.Y. Times offers a summary of efforts to reshape the ideological and political terrain for such conflicts before 2024.

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Reforms to Electoral Count Law On Table, Maybe

N.Y. Times

Members of the congressional committee investigating the Jan. 6 attack at the Capitol are pressing to address ambiguities in “the complex and little-known law that former President Donald J. Trump and his allies tried to use to overturn the 2020 election.”

Trump and his allies offered a questionable interpretation of the Electoral Count Act of 1887 to encourage Mike Pence to overturn the results from the Electoral College.

“’There are a few of us on the committee who are working to identify proposed reforms that could earn support across the spectrum of liberal to conservative constitutional scholars,’ said Representative Adam B. Schiff, Democrat of California and a member of the Jan. 6 committee. ‘We could very well have a problem in a future election that comes down to an interpretation of a very poorly written, ambiguous and confusing statute.’”

Representative Liz Cheney, Republican of Wyoming and the vice chairwoman of the committee, said on Thursday that ‘the 1887 Electoral Count Act is directly at issue’ and that the panel would recommend changes to it.”

The hope is that amending the Electoral Count Act will fare better than other election reforms in the Senate. I frankly don’t see why.

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Lawfare to consolidate significant Jan. 6 developments in one place

A big thank you to Lawfare, which has announced its new initiative to consolidate information and developments arising out of the Jan. 6 attack on the Capitol and democracy.

Lawfare is launching The January 6 Project, which compiles Lawfare’s coverage, analysis and resources related to the legal and policy issues arising out of the Jan. 6 attack and the government response. At its homepage, Confronting the Capitol Insurrection, you can find a collection of Lawfare articles and podcasts, as well as a repository of significant documents, congressional hearings, case information and other materials related to Jan. 6.”

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“Eastman takes the Fifth with Jan. 6 committee”

Politico:

John Eastman, the attorney who helped former President Donald Trump pressure then-Vice President Mike Pence to overturn the 2020 election, has asserted his Fifth Amendment right against self-incrimination, according to a letter he delivered to the Jan. 6 committee explaining his decision not to testify.

“Dr. Eastman hereby asserts his Fifth Amendment right not to be a witness against himself in response to your subpoena,” his attorney, Charles Burnham, wrote in a letter to Chair Bennie Thompson (D-Miss.) dated Dec. 1.

“Members of this very Committee have openly spoken of making criminal referrals to the Department of Justice and described the Committee’s work in terms of determining “guilt or innocence,” Burnham continues. “Dr. Eastman has a more than reasonable fear that any statements he makes pursuant to this subpoena will be used in an attempt to mount a criminal investigation against him.”

Eastman’s decision is an extraordinary assertion by someone who worked closely with Trump to attempt to overturn the 2020 election results. He met with Trump and pushed state legislative leaders to reject Biden’s victory in a handful of swing states and appoint alternate electors to the Electoral College, effectively denying Biden’s victory.

The former Chapman University law professor also pressured Pence, who is constitutionally required to preside over the Electoral College certification on Jan. 6, to unilterally refuse to count some of Biden’s electors and send the election to the full House for a vote — or delay long enough to give states a chance to submit new electors.

Eastman also spoke at Trump’s Jan. 6 rally alongside Rudy Giuliani.

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“Two Election Workers Targeted by Pro-Trump Media Sue for Defamation”

Reid J. Epstein, N.Y. Times

“Two Georgia election workers who were the targets of a right-wing campaign that falsely claimed they manipulated ballots filed a defamation lawsuit on Thursday against one of the nation’s leading sources of pro-Trump misinformation.”

Must admit I am not a big fan of defamation suits. Don’t individual election workers become public figures when there is an election meltdown? I guess I could be persuaded not. Maybe. Or maybe the claim is one of actual malice? I am left curious. And who knows may even get around to reading the complaint by tomorrow.

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“GOP targets Wisconsin elections system, nonpartisan director”

Political Wire notes this news item from NBC News.

” Wisconsin Republicans are working to discredit the bipartisan system they created to run elections in the state after President Joe Biden narrowly won last year’s presidential race, making the political battleground the latest front in the national push by the GOP to exert more control over elections.

Wednesday will bring a flurry of election-related developments in the state, with both the Wisconsin Elections Commission and a partisan legislative panel dissecting the 2020 presidential election. At the same time, Republican lawmakers are continuing to attack the state’s well-regarded election administrator in a pressure campaign to have her resign, an apparent attempt to install a GOP partisan in the position ahead of next year’s midterm elections.”

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“Trump allies work to place supporters in key election posts across the country, spurring fears about future vote challenges”

Washington Post takes a deep dive into the Trump team’s efforts to replace election administrators in swing states and its particular focus on Michigan.

“This is a great big flashing red warning sign,” said Jeff Timmer, former chair of the Michigan Republican Party and a Trump critic. “The officials who fulfilled their legal duty after the last election are now being replaced by people who are pledging to throw a wrench in the gears of the next election. It tells you that they are planning nothing but chaos and that they have a strategy to disrupt the certification of the next election.”

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Book Review: “Betrayal: The Final Act of the Trump Show”

The Washington Post reviews ABC newsman, Jonathan Karl’s Betrayal: The Final Act of the Trump Show.

“Karl’s sobering, solid, account of Trump’s last year in office sheds new light on how the man who lost the presidency nearly succeeded in overthrowing the 2020 election. Anyone who thinks that “it can’t happen here,” ought to read this book.”

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“Mike Lindell Finally Reveals His Supreme Court Complaint, And Critics Have Notes”

HuffPost:

MyPillow CEO Mike Lindell on Tuesday released a copy of his long-promised Supreme Court complaint to overturn the 2020 presidential election, though it had not actually been filed and it listed the plaintiff as “[insert your state].”

The pillow magnate turned conspiracy theorist has vowed again and again that he would file an election fraud complaint directly to the U.S. Supreme Court that would somehow reinstate Donald Trump as president.

He had predicted this fantastical reinstatement would take place in August, then September and then by the end of the year.

“We will have this before the Supreme Court before Thanksgiving,” he promised in September. “That’s my promise to the people of this country.”

On Tuesday evening, he published a copy of the complaint on his website, though it appeared to be missing some essential components and he had apparently failed to get any state attorneys general to sign on to it.

This comes on top of 186 state legislators around the country with a petition to “decertify” the election and call on the House of Representatives to do a do-over.

Decertification of a presidential election is not a thing. There was no significant fraud or illegal action in the 2020 election. This sort of stunt is dangerous for American democracy and will further undermine voter confidence already shaken by lies about 2020 election rigging.

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“Trump’s Voter Fraud Claims Test Republican Candidates”

WSJ:

Former President Donald Trump’s yearlong campaign falsely claiming he won the 2020 election and demanding redress is turning voter fraud into a litmus test for Republicans seeking office as the party seeks to reclaim the House and Senate in 2022.

Mr. Trump has told advisers the issue will help the party win control of Congress next year and win back the White House in 2024. He has privately floated the possibility of an early presidential campaign announcement to underscore the message to conservative voters.

Many Republican candidates have fallen in line. Some have refused to concede defeats from 2020—and, like Mr. Trump, used fraud claims to raise money. Others seeking office have tailored their campaign messages to echo Mr. Trump’s claim that he won to avoid facing a backlash from his supporters.

Still other Republicans, including Glenn Youngkin, who won the Virginia governor’s race earlier this month, have aimed to navigate the issue by sidestepping many of Mr. Trump’s election-fraud claims without disavowing the man himself. Meanwhile, several of the former president’s most persistent Republican critics, such as six-term Rep. Adam Kinzinger of Illinois, have said they aren’t running for re-election.

On the local level, some election chiefs have been harassed and subject to intimidation for refusing to say the vote counting isn’t secure. A wave of election officials and longtime professional staff have left their jobs under pressure.

The message appears to be contributing to eroding confidence in the nation’s election systems—similar to the long-running decline of faith in civic institutions such as the government, the criminal justice system and the media. In October, a Grinnell College poll found that 58% of Americans were very or somewhat confident that the 2022 vote will be counted fairly. Confidence among Republicans was at just 38%, down from 85% in March 2020.

In the wake of last year’s election, Mr. Trump’s campaign and his allies lost dozens of lawsuits around the country that challenged the 2020 results. The Justice Department said there were no signs of widespread fraud. A bipartisan consortium of local, state and federal election officials declared the 2020 race the most secure U.S. election in history.

But Mr. Trump never conceded, and a year later continues to press his case. Last month he sent a letter to The Wall Street Journal editorial board making multiple false claims about the results in Pennsylvania. In a recent interview, he raised doubts about the coming elections. “A lot of people are worried that if we don’t take care of that issue, you’re going to have a problem in ’22 and ’24,” Mr. Trump said. “They don’t want the same thing to happen where the election is rigged. I’m very concerned that the elections are going to be rigged.”

Following his example, some other Republican candidates haven’t conceded their 2020 losses….

This past year, Mr. Trump has supercharged the trend. In private conversations, he has said Mr. Gore was wrong to concede the race in 2000, people familiar with the remarks said. He has also told allies that his polling shows voter fraud motivates his base and argued that an announcement sometime next year that he would run for president would boost Republican turnout for the midterms, people familiar with the conversations said.

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“House Panel Subpoenas Roger Stone and Alex Jones in Capitol Riot Inquiry”

NYT:

The House committee investigating the Capitol attack issued five new subpoenas on Monday, focusing on allies of former President Donald J. Trump who helped draw crowds to Washington before the riot on Jan. 6, including the political operative Roger J. Stone Jr. and the conspiracy theorist Alex Jones.

The subpoenas, which come after the committee has interviewed more than 200 witnesses, indicate that investigators are intent on learning the details of the planning and financing of rallies that drew Mr. Trump’s supporters to Washington based on his lies of a stolen election, fueling the violence that engulfed Congress and delayed the formalization of President Biden’s victory.

“We need to know who organized, planned, paid for and received funds related to those events, as well as what communications organizers had with officials in the White House and Congress,” said Representative Bennie Thompson, Democrat of Mississippi and the chairman of the committee.

Mr. Stone promoted his attendance at the rallies on Jan. 5 and 6, and solicited support to pay for security through the website stopthesteal.org. While in Washington, he used members of the Oath Keepers as personal security guards; at least one of them has been indicted on charges that he was involved in the Capitol attack.

In a statement, Mr. Stone said he had not yet been served with the subpoena and denied any involvement with the violence.

“I have said time and time again that I had no advance knowledge of the events that took place at the Capitol on that day,” he said.

Mr. Jones helped organize the rally at the Ellipse near the White House before the riot — including by facilitating a donation from Julie Jenkins Fancelli, the heiress to the Publix Super Markets fortune — to provide what he described as “80 percent” of the funding, the House committee said. Mr. Jones has said that White House officials told him that he was to lead a march to the Capitol, where Mr. Trump would speak, according to the committee.

Mr. Stone and Mr. Jones were among the group of Trump allies meeting in and around the Willard Intercontinental Hotel near the White House the day before the riot.

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“Court Urged to Let Jan. 6 Panel See Trump White House Files”

NYT:

A  federal appeals court should permit Congress to see White House records about former President Donald J. Trump and the Jan. 6 riot at the Capitol, lawyers for House Democrats and the Biden administration argued on Monday.

The case has raised novel executive privilege issues because President Biden has declined to invoke the privilege to block a subpoena from the House’s special oversight committee for the materials, saying that it is in the national interest for the panel to gain access to the information it is seeking. But Mr. Trump, as a former president, has invoked executive privilege and filed a lawsuit.

In a 69-page brief, lawyers for the House urged the United States Court of Appeals for the District of Columbia Circuit to permit the House committee investigating the riot to see the files without waiting for litigation over Mr. Trump’s privilege claim to be fully resolved.

They stressed that the constitutional privilege exists to protect the executive branch, not an individual person, and that the incumbent president had declined to assert the privilege in this case. The lawyers for the House called Mr. Trump’s assertion of executive privilege “unprecedented and deeply flawed” and said the judiciary should not permit it to interfere with the work of Congress.

“It is difficult to imagine a more critical subject for congressional investigation, and Mr. Trump’s arguments cannot overcome Congress’s pressing need,” the brief said. “Both political branches of government agree that these records should be disclosed to the select committee, and the district court’s denial of Mr. Trump’s request to preliminarily enjoin that action should be affirmed.”

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