That objective is not somehow to rescind the 2020 election, as they would have us believe. That’s constitutionally impossible. Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.
The last presidential election was a dry run for the next.
From long before Election Day 2020, Trump and Republicans planned to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment, if Trump lost the popular and Electoral College vote.
The cornerstone of the plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to Donald Trump….
Trump and his allies and supporters in Congress and the states began readying their failed 2020 plan to overturn the 2024 presidential election later that very same day and they have been unabashedly readying that plan ever since, in plain view to the American public. Today, they are already a long way toward recapturing the White House in 2024, whether Trump or another Republican candidate wins the election or not.
Trump and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote. Barrett has not addressed the issue, but this turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct.
Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.
The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be.
Finally, they are furiously politicking to elect Trump supporters to the Senate and House, so they can overturn the election in Congress, as a last resort.
Forewarned is to be forearmed.
Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.
Andrew Yang is the guest on the new must-listen episode of Sarah Longwell’s Focus Group podcast. They discuss the possibility of a significant third-party, or independent, candidate in the 2024 presidential race. Yang, who’s started his own Forward Party, essentially promises one–especially if the two major-party candidates are Biden and Trump again, although he doesn’t say he’ll necessarily be the candidate. He offers Mark Cuban as the example of a candidate who he thinks could compete effectively against both Biden and Trump.
Sarah Longwell expresses the concern that any third candidate would pull more votes from the Democratic nominee than from Trump, assuming that Trump is the GOP nominee. Fearing for the future of US democracy itself if Trump wins a second term, Longwell worries that any third candidacy (however well-intentioned) could end up devastating for the country by being the cause of Trump’s return to power. For what it’s worth, I share Longwell’s concern for the reasons she expresses.
Yang and Longwell also discuss the possibility of ranked-choice voting as a way to avoid the potential spoiler effect. Yang says he’s not willing to wait for ranked-choice voting to be in place in order for there to be a third-party candidate. While he’d prefer ranked-choice voting to come first, from his perspective disrupting the major-party duopoly (as he puts it) is necessary, even at the risk of creating a spoiler effect in 2024. At least, that’s how I heard him express his position on the podcast.
In any event, it’s time to dust off copies of Presidential Elections and Majority Rule, which discusses the importance of adopting ranked-choice voting on a state-by-state basis (like Maine and Alaska) as the method of appointing presidential electors, in order to guarantee that winner-take-all electoral votes are awarded to majority winners, thereby avoiding the potential “spoiler” effect of third-party or independent candidates.
Do we really want to be in the position where whether Trump wins or loses in 2024 depends on the idiosyncratic decision of an individual billionaire, like Mark Cuban, to enter the election as an alternative to both Trump and the Democratic nominee?
Congress is trying to strengthen the law, though with little to show for its work. For much of the past year, Democratic lawmakers who control both houses focused instead on broader election reform aimed at expanding voting rights. That initiative collapsed. Senate Democratic leader Chuck Schumer has at times portrayed the parallel effort to revise the Electoral Count Act as an unwanted distraction.
“There were a number of parties and nefarious actors back in 2020 that tried to weaponize the Electoral Count Act in ways that were deeply problematic,” Rep. Joe Neguse, D., Colo., who was a House prosecutor in Trump’s second impeachment trial, told NBC News. “It appears one component of that was this notion of fake electors being sent from the states, so I think it’s an area that we have to reform, and we have very little time to do so.”
What seems most likely to pass, if anything, are a few fixes for which there is a broad consensus. Congress may clarify that the vice president plays merely a ceremonial role when it’s time to count the electoral votes and cannot, as Trump argued, unilaterally reject the outcome in certain states. Lawmakers may also raise the threshold so that it takes more than a single member of the House and Senate to object to a state’s electoral votes and thus delay the formal certification of the incoming president’s victory.
One solution that election experts have proposed is giving the courts the final say if there’s any dispute about which slate of electors should be counted. That way, in an era of extreme partisanship, members of Congress and governors aren’t the ones settling disputes about who gets to be president.
“The most important question is how do we ensure there is no political actor in Congress or state government that can elevate those fake electors into something that might actually get counted,” said Matthew Seligman, a Yale Law School fellow who has been advising Congress on how best to revamp the Electoral Count Act, according to a Senate aide. “And, unfortunately, that’s exactly what the law permits.”
Whether the law gets changed in time for the next presidential election is by no means certain. Sen. Jeanne Shaheen, D-N.H., is part of a bipartisan group of senators working to revamp the Electoral Count Act. “It’s not clear” that the negotiations will result in passage of a bill, she told NBC News. “First of all, the group that has been working on it has to come to some agreement. And then we have to get agreement from the leadership on both sides.
“I do see it as a problem,” Shaheen said of the alternate electors. “Whether we can get agreement on how to address it remains to be seen.”
Thomas Berry of Cato and Genevieve Nadeau of Protect Democracy offer these ideas over at Lawfare.
This could well have large influence over ECA reform, not only for its substance but for who is behind the set of endorsements:
At the invitation of the leadership of The American Law Institute, a group whose members span a range of legal and political views came together to consider possible Electoral Count Act (ECA) reforms. Despite holding diverse legal, political, and ideological commitments, the group is united by the belief that Congress should reform the ECA before the 2024 presidential election. The group has agreed on several general principles that should guide ECA reform, as well as specific proposals as to what ECA reform should seek to accomplish. Read the group’s complete set of principles here, and read ALI’s press release here.
The members of the group, selected for their deep and varied experience in law and government, are:
Bob Bauer (NYU School of Law and former White House Counsel) (Co-Chair)
Elise C. Boddie (Rutgers Law School, and former litigation director of the NAACP Legal Defense and Educational Fund)
Mariano-Florentino Cuéllar (President of the Carnegie Endowment for International Peace, and formerly a Justice of the California Supreme Court)
Courtney Simmons Elwood (former General Counsel of the Central Intelligence Agency)
Jack Goldsmith (Harvard Law School and former Assistant Attorney General, Office of Legal Counsel) (Co-Chair)
Larry Kramer (President of the William and Flora Hewlett Foundation, and former Dean of Stanford Law School)
Don McGahn (Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University, and former White House Counsel)
Michael B. Mukasey (former United States District Court Judge and former United States Attorney General)
Saikrishna Prakash (University of Virginia School of Law)
David Strauss (University of Chicago Law School)
More detailed biographies are attached to the Statement of Principles for ECA Reform.
In an upcoming episode of the ALI’s Reasonably Speaking podcast, ALI President David F. Levi will be speaking with the group’s co-chairs Bob Bauer and Jack Goldsmith to further discuss their work. ALI Director Richard L. Revesz will also be devoting his April quarterly newsletter in The ALI Reporter to discussing the group’s important work.
ECA reform should be guided by these general considerations:
• Congress lacks the constitutional authority to address every issue that may arise in the presidential selection process.
• ECA reform should not itself become the basis of fresh uncertainties about the presidential selection process by raising new questions about whether Congress has acted within constitutional limits and inviting legal challenges on that basis. The aim of ECA reform should be, at a minimum, to address the core dangers and uncertainties presented by the current law without introducing
new problems of the same kind.
• ECA reform should clarify that Congress has an important but limited role in tallying electoral votes, consistent with the best understanding of the Twelfth Amendment and other relevant authorities.
• ECA reform should help check efforts by any State actor to disregard or override the outcome of an election conducted pursuant to State law in effect prior to Election Day, including State law governing the process for recounts, contests, and other legal challenges. (Currently every State has chosen to select presidential electors through the popular vote.) This is the most difficult element of reform because the question of Congress’ role in addressing abuses of this kind can raise novel and difficult constitutional questions and generate sharp political disagreement. ECA reform cannot by itself address every conceivable problem that may arise within a State, many of which will require legal and political responses at the State level.
• ECA reform should not affect the authority of the federal courts to address Due Process, Equal Protection, and other constitutionally based claims of unlawful State action in the administration, count, and certification of a State’s popular vote.
The General Principles are followed by specific recommendations for Congress, for the date of electoral college certification in the states, and for dealing with state action with the potential for multiple slates of electors.
Kudos to ALI for getting this group together and achieving this much consensus.
Rick linked to an NPR story on Arizona’s HB 2492, and this line caught my eye: “Under HB 2492, if elections officials can’t find evidence that a federally registered voter is a U.S. citizen, that voter can’t vote by mail, or cast a vote in presidential elections.” It picks up on a distinction in federal power over elections, an issue that’s lurked under the surface of a variety of election laws over the last hundred years but may return to the surface–the difference between congressional and presidential elections.Continue reading Arizona’s new proof of citizenship law treats presidential & congressional voters differently, a constitutional distinction in federal power over elections
As forces loyal to Donald Trump began calling on Mike Pence to single-handedly stop Joe Biden from becoming president, the then-vice president dashed off a request in late 2020 to his top lawyer: Just how much power did he actually have over certifying electoral votes?
His counsel, Greg Jacob, replied the next day with a four-page legal memo that marked Pence’s first crash course in an arcane legal issue with historic consequences.
The memo launched Pence into a month-long sprint toward Jan. 6, 2021, as he and his team immersed themselves in the contradictory and complicated history of counting electoral votes.
Jacob’s analysis laid out the centuries-old debate about the vice president’s role in counting electoral votes. And while it doesn’t take a side on whether Pence had the power to reject votes or not, the Dec. 8 brief reveals how quickly after the election Pence and his team began to contemplate the limits of his role presiding over the Jan. 6 session of Congress — which was required by the Constitution.
The memo anticipated and addressed some of the legal arguments that Trump and his supporters would soon use to pressure Pence to overturn the results when he led Congress in counting Electoral College votes.
The memo was a hurried effort to get Pence familiarized with the contours of the issue. A person familiar with its drafting described it as written “overnight” in response to Pence’s request, which came just as Trump allies began pushing the notion that Pence could unilaterally keep the GOP president in power.
“This legal analysis … was presented to Vice President Pence amidst disinformation about his roles and responsibilities and based on his first request for information about the mechanics of the electoral vote count on January 6,” said the person, granted anonymity to speak candidly about the situation. The person said that it “provides facts rather than firm conclusions, because research was not yet complete.”
A book review from Kate Shaw, forthcoming in the Michigan Law Review:
As the 2020 presidential election made clear, the Electoral College is a profoundly dangerous institution. American constitutional democracy survived that election and its aftermath, emerging battered and bruised but still standing. But the Electoral College is in large part to blame for how close it came to a fatal wound.
That’s true as a technical matter. Joe Biden won the national popular vote by approximately seven million votes and prevailed in the Electoral College 306–232. But just forty-four thousand more Trump votes across Arizona, Georgia, and Wisconsin would have resulted in a 269–269 tie in the Electoral College. If that had happened, the House of Representatives, voting by state delegation, would likely have handed Donald Trump the presidency. That would have marked the third time in twenty years—and the second time in two cycles—that our anachronistic system of presidential selection produced a president who did not win the national popular vote. Following the election, President Trump worked ruthlessly to convert loss into victory, exploiting pressure points and ambiguities in the protracted and complex process, partly constitutional and partly statutory, that we refer to collectively as the Electoral College. Trump’s campaign filed numerous lawsuits designed to delay state certification beyond the statutory “safe harbor” deadline, after which a state’s slate of electors is no longer conclusive in the event of a dispute. Trump supporters attempted to disrupt the required meetings at which each state’s electors actually cast their votes. Ersatz Trump “electors” purported to cast competing votes in some states, seeking to lay the groundwork for later challenges to official state slates. Trump pressured state election officials to “find” additional votes for him and reportedly urged Vice President Pence to refuse to count electoral votes from a number of states. Trump loyalists in the Department of Justice sought to push state legislatures to take the radical step of discarding state returns on the basis of spurious fraud claims and appoint Trump electors themselves. Most significantly, what became the January 6, 2021, attack on the Capitol was an effort to disrupt the final event in the Electoral College timeline: a joint session of Congress over which the vice president presides.
It is tempting to dismiss these events as largely attributable to the identity of the incumbent president and not as fundamentally connected to the Electoral College. Certainly, any electoral system can be targeted by a sufficiently determined aspiring autocrat. But as Jesse Wegman’s Let the People Pick the President: The Case for Abolishing the Electoral College makes clear, not only questions of democratic legitimacy, but also the specter of chaos and manipulation, have stalked the Electoral College from the beginning. Wegman’s important book is an urgent indictment of the Electoral College; one hopes that its urgency is not lost as President Trump’s tumultuous departure from office fades from view. While Trump was emphatically wrong in the particulars of his attack on the 2020 election, there is something deeply broken in our system of presidential selection. Perhaps an unexpected legacy of Donald Trump’s presidency will be finally galvanizing us to fix it.
To hear Ty Garbin tell it, the kidnapping of Michigan’s Democratic governor would have been just the beginning.
By abducting Gov. Gretchen Whitmer, Mr. Garbin and other plotters hoped, he said, to set off a chain of events that would prevent Joseph R. Biden Jr. from being elected president and perhaps foment a civil war.
“The plan was for us to basically be the ignition to it, and hopefully other states or other groups would follow,” said Mr. Garbin, who pleaded guilty last year to conspiring to kidnap the governor and who testified this week at the federal trial of four other men accused of participating in the plot.
And from later in the piece, “But there has been vast disagreement in court about how close they were to carrying out any attack, and about what their exact plan even was.”
Bob Woodward and Robert Costa in the Washington Post:
Virginia Thomas, a conservative activist married to Supreme Court Justice Clarence Thomas, repeatedly pressed White House Chief of Staff Mark Meadows to pursue unrelenting efforts to overturn the 2020 presidential election in a series of urgent text exchanges in the critical weeks after the vote, according to copies of the messages obtained by The Washington Post and CBS News.
The messages – 29 in all – reveal an extraordinary pipeline between Virginia Thomas, who goes by Ginni, and President Donald Trump’s top aide during a period when Trump and his allies were vowing to go to the Supreme Court in an effort to negate the election results.
On Nov. 10, after news organizations had projected Joe Biden the winner based on state vote totals, Thomas wrote to Meadows: “Help This Great President stand firm, Mark!!!…You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”
And from near the end of the piece:
In that message, Thomas expresses support for Meadows and Trump – and directed anger at Vice President Mike Pence, who had refused Trump’s wishes to block the congressional certification of Biden’s electoral college victory.
“We are living through what feels like the end of America,” Thomas wrote to Meadows. “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams. Those who attacked the Capitol are not representative of our great teams of patriots for DJT!!”
For Alabama.com, relaying this statement from Brooks:
President Trump asked me to rescind the 2020 elections, immediately remove Joe Biden from the White House, immediately put President Trump back in the White House, and hold a new special election for the presidency. As a lawyer, I’ve repeatedly advised President Trump that Jan. 6 was the final election contest verdict and neither the U.S. Constitution nor the U.S. Code permit what President Trump asks. Period.
We’ll see if there are additional details (or disputes) about this conversation in the weeks ahead. I imagine it will attract some congressional attention.
Long read in Politico Magazine from Greg Bluestein of the Atlanta Journal-Constitution. An excerpt:
Ahead of a Dec. 3 fundraiser at Truist Park, Kemp called a meeting with the two senators and three of their top aides to hash the matter out. His office had been communicating with the senators’ campaigns on a daily basis about the legal problems with a special session. Perdue said his deputies didn’t always speak for him. He wanted to meet in person and talk it over face to face.
They gathered into a cramped room on the fringe of the stadium, a windowless event space with a few couches and a small bathroom. Like so many other instances in the runoff, the Republicans in the room felt that Trump had put them in an impossible bind.
After some idle chatter, Perdue made his position clear. The campaign aides who indicated he didn’t want to summon legislators back to the Capitol didn’t represent his stance on this issue, Perdue said. Looking Kemp directly in the eye, the senator told the governor that he wanted a special session to prove to the party’s base that their elected officials would go to the mat for the president. Trump could say whatever he wanted since he didn’t have a runoff to worry about, but Perdue still had a campaign to wage. He viewed a special session as a way to prove his worthiness to the GOP base without joining the ranks of the conspiracy theorists.
Kemp took it all in, then presented his own view. State lawmakers can’t retroactively change election law after a vote to help a candidate, he said. Not only was it constitutionally problematic to call a special session, he told them, but it would also put tremendous pressure on the state’s 236 lawmakers — and shift attention away from the Senate incumbents already struggling enough with internal party divisions.
“I have no problem being the bad guy,” he told the two senators. “I’ll take the arrows to make sure y’all win.”
(Kemp’s aides dispute this account, saying Perdue never directly asked Kemp to call a special session.)
Three days later, the governor delivered a similar message to a room full of state lawmakers at a training session in Athens, Ga., making a point to let his words to the gathered Republicans sink in.
“This is not an option under state or federal law,” Kemp said. “The statute is clear. The legislature can only direct an alternative method for choosing presidential electors if the election was not able to be held on the date set by federal law.”
It turns out Mike Pence made more than one major change to the vice presidential script for presiding over the Jan. 6 counting of electoral votes.
Pence’s decision to craft and employ his own unprecedented language as he presided over the final step of the 2020 election reflected his resistance to a pressure campaign by then-President Donald Trump to subvert the process. Pence’s rewrite has since drawn the attention of congressional investigators.
He also made a second, subtler, but no less significant change to the script on Jan. 6, 2021, according to newly released documents and testimony. This previously unreported adjustment, further illustrating his pushback to the Trump-led gambit, involved a simple question that he asked each time a state’s electoral vote results were introduced: “Are there any objections?”
What sounded like boilerplate lingo actually served as an intentional emphasis by Pence on the federal law that lets members of Congress challenge presidential results — the exact element of certification that Trump and attorney John Eastman sought to undercut.
Former federal judge J. Michael Luttig writes in a recent New York Times op-ed, “Nothing in the Constitution empowers Congress to decide the validity of the electoral slates submitted by the states.” Earlier, he’d written in a Wall Street Journal op-ed (with David Rivkin), “No constitutional provision empowers Congress to resolve disputes over the validity of a state’s electoral slate—or for that matter addresses who is to resolve these disputes.” In another letter to the Journal this week, they write, “Moreover, disputes over the selection of presidential electors involve a legal, not a political, discernment, that is appropriate for a judicial body. Congress is not a court.”
Is that right? Has Congress been wrong all these years? Was it wrong exercising this power in 1873 and 1877? Was it wrong considering exercises of it from 1800 to 2021?
Almost every scholar I’ve encountered–left, right, and center–has said just the contrary, that Congress does have a role to resolve the disputes over electoral votes. And many go further and argue courts lack any role once Congress steps up.
There are three layers of inquiry on the role of Congress. The first is whether Congress (not the court) has the power to make decisions as to counting. The second is the scope of Congress’s power. The third is whether Congress, if it has that power, can give that power to courts.
There are subtleties among some of the commentary I link to below. Some have argued that there is no role for the courts; others argue that the courts ought to largely defer (with perhaps some limitations) once Congress has indicated its willingness to decide; still others believe it is incumbent on Congress to decide in the end because the Constitution delegates that responsibility to them.
It’s possible that scholars have changed their views on these matters since the time they wrote the pieces below or have refined their views in light of new evidence or more persuasive counterarguments. And it’s possible they’re wrong and the more persuasive view is the one advanced by Luttig and Rivkin. But below the fold I include citations to some of the academic work that argues that Congress has the authority to adjudicate disputes about presidential elections.
(I’ll return in a later post to address the question of whether Congress, if it has that power, can give that power to courts, which raises a separate set of concerns depending on how it chooses to give that power.)Continue reading Can Congress adjudicate disputes on the validity of electoral votes?