With his chances of winning Georgia slipping away in December 2020, then-President Donald Trump hit upon a novel scheme to stay in power: State legislators would name him the winner.
So, while his allies spun dubious tales of voting fraud at the Georgia Capitol, Trump’s campaign called nearly 120 Republican legislators to ask whether they would appoint a slate of presidential electors who would vote for Trump instead of Democrat Joe Biden. A log of those phone calls recently released by congressional investigators shows some lawmakers were eager to help.
“Hell, yes,” said one. “100%,” replied another. “Very supportive and ready to go,” a third lawmaker told the campaign.
In all, about 30 Republican legislators expressed some level of support for allowing the General Assembly to name Trump the winner of the presidential election, according to the call log. The log and other documents released by investigators suggest scores of other lawmakers also may have supported the plan.
The documents appear to offer the fullest picture yet of Trump’s effort to pressure legislators to help him overturn the election — and the willingness of lawmakers to go along with that plan.
Some lawmakers say the documents are not accurate. Fourteen legislators the Trump campaign identified as supporting his plan told The Atlanta Journal-Constitution that they either do not remember receiving such a call or said they never supported a plan to appoint Trump electors.
“I do think there were some issues with the election,” said state Rep. Kasey Carpenter, R-Dalton. “But that was not the way to go.”
No legislator contacted by the AJC admitted to taking the Trump campaign’s call or supporting his plan.Seventeen lawmakers the campaign identified as supporting Trump’s plan did not respond to requests for comment or could not be reached.
The reluctance of some lawmakers to talk about Trump’s plan is in stark contrast to the climate that gripped the Georgia Capitol in the wake of the 2020 election. With the president demanding loyalty and bullying politicians who failed to get in line, plenty of Georgia lawmakers were willing to publicly support his efforts. Calls to convene a special session to tighten voting rules quickly evolved into calls for legislators to “take back the power to appoint electors.”
The congressional documents don’t reveal the stance of every Republican lawmaker, and they don’t necessarily reflect how legislators would have voted if given the chance to overturn the election. That chance never came — Gov. Brian Kemp and legislative leaders rejected calls to convene a special session that would have allowed the General Assembly to name Trump the winner.
But the documents suggest plenty of lawmakers were ready to reject the will of a majority of Georgia voters on the flimsiest of pretenses.
Category Archives: electoral college
Cleta Mitchell, in Jan. 6 Committee Deposition, Expresses View that (Old) Electoral Count Act is Unconstitutional and Legislatures Have Absolute Power over Electors; The People’s Vote for President is Just “Advisory”
Amazing from the Cleta Mitchell deposition transcript, at pp. 20-21:
State legislatures should examine their election codes after passage of the Electoral Count Reform Act
The new Electoral Count Reform Act will have an effect on state election laws in presidential elections. The timing mechanisms have changed, and rules now expressly invite state legislatures to make explicit choices before Election Day. And states should be aware of how the changes could affect their own election codes, and whether they should revisit some of their existing choices.
First, the ECRA abolishes the “failed to make a choice” provision of the 1845 act (North Carolina may need to repeal its law to this effect) and replaces it with a firm, singular “election day” requirement, with one exception: “except, in the case of a State that appoints electors by popular vote, if the State modifies the period of voting, as necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to such day.” States should provide those clear rules before the election for what “extraordinary and catastrophic” “force majeure” events trigger a modified period of voting. (This only applies to presidential elections, but it could also apply to state elections happening at the same time, if a state so chose.)
I commend the work of Professor Michael Morley, who has offered extensive and thoughtful views on what election emergency statutes should look like. To borrow from one of his recommendations in an Emory Law Journal piece from 2018:
[A]n emergency that is either of limited duration or affects only a limited geographic area is best addressed through an election modification, in which the election is allowed to proceed with only minor changes to the generally applicable laws. Examples of election modifications may include relocating polling places, extending the hours of polling places that were temporarily inoperable, using paper ballots instead of electronic voting machines, permitting voters to cast ballots through alternate means, or allowing re-votes if certain cast ballots are destroyed before being counted. One important issue such laws present is whether election officials should have discretion to implement such measures on their own, must wait for a declaration of emergency from local or county officials or the governor, or instead must seek a court order before implementing such changes. A statute requiring judicial permission before extending polling place hours, or making other substantial modifications to the rules governing an election, would be a particularly prudent safeguard.
Express guidance for what events qualify, with a requirement for judicial permission, would be “prudent” indeed.
Second, the ECRA adds a firm deadline for executives to submit certificates of ascertainment of appointment of electors (no more “safe harbor” or presumptions). States should be working backwards from that deadline to determine if their canvass, audit, recount, and contest procedures are able to take place in this tight window. States like California have languished in completing their canvass in recent years, taking up to 30 days to resolve the initial canvass, setting aside even the possibility of recounts (in the event of a close election). Some states allow ballots to come in seven to ten days after Election Day, and maybe that continues to work to meet existing deadlines, but states should strive for wrapping up the canvass as quickly as possible after the last ballot comes in. Other states have developed newer recount triggers, or risk-limiting audits, which should be completed with an eye toward this firm deadline. But states should think about how they plan on running through each of these steps (which Georgia mostly had to do in 2020!) in a tight time frame.
Relatedly, expedited state judicial resolution should be considered in the states, including specially-created contest courts or expedited appeal mechanisms. (Iowa, for instance, creates a seven-judge tribunal with no right of appeal for election contests in federal races, to be resolved “six days before the first Monday after the second Wednesday in December next following,” i.e., the old “safe harbor” deadline, which means it should probably be updated!)
The precedent from Hawaii 1960 has been repudiated. That is, no more judicial challenges or recounts extending into January.
Third, the new ECRA expressly requires a “security feature” on the certification of ascertainment of appointment of electors, “as determined by the State.” This is a modest requirement, and perhaps the seal on state certificates are adequate, but it’s worth considering what feature the states will use.
Fourth, the ECRA defaults to the executive to the “governor,” but state law may identify “a different State executive” to perform the duty (say, a Secretary of State) if it so chooses.
State legislatures should take a step by step approach to examine what the ECRA does and how it meshes with their existing election code. Formally, no state will be forced to make a change, as the new federal obligations simply exert different pressure on existing state law. But it provides an opportunity for states to modernize their election codes to meet the clearer federal guidelines ahead of the next presidential election.
“The Electoral College is hazardous to democracy, Raskin says”
Rep. Jamie Raskin said Sunday the Electoral College “has become a danger” to American democracy.
Speaking on CBS’ “Face the Nation,” the Maryland Democrat said: “I think that the Electoral College now, which has given us five popular vote losers as president in our history — twice in this century alone — has become a danger.”
Raskin said it is about time that Americans elect presidents the same way they elect other public officials, through the popular vote.
“It was a danger on January 6th,” said Raskin, who served on the House select committee that investigated the Jan. 6 Capitol riots, “There are so many curving by-ways and nooks and crannies in the Electoral College that there are opportunities for a lot of strategic mischief.”…
Changes to the Electoral Count Act were included in the omnibus spending bill that the House and Senate passed last week. Those changes are designed to block some of what then-President Donald Trump and his allies tried to do in an attempt to overturn the results of the 2020 presidential election.
Raskin said he backed those reforms, but that they didn’t go far enough.
“I’m for that. That’s the very least we can do and we must do,” he said. “It’s necessary, but it’s not remotely sufficient.”
Parliamentary tweaks to the Electoral Count Reform Act
Earlier this week, I noted that the Senate’s Electoral Count Reform Act was included in the omnibus bill, with “quite minor technical and parliamentary changes.” I wanted to highlight what those are.
There are a few word choice changes to bring consistency among the new provisions from the Electoral Count Reform Act and the existing provisions of the Electoral Count Act, such as replacing the word “list” in places with “certificate of ascertainment,” as it relates to state results of the appointment of electors; changing “the” to “a” or “votes or papers” with “any vote or paper,” for some increased precision.
Three others more interesting (but still minor, parliamentary) details.
First, it renames the joint “meeting” a joint “session.” There’s a formal distinction between the two, and the modification of language brings it up to the appropriate title of “session.”
Second, in the two-hour debate period for any objections, it gives the majority and minority leaders equal time to parcel out up to five minutes’ debate per member. This is how it’s worked in practice, but it’s now codified.
Third, it specifies that objections and “questions” must be signed by 1/5 of the members of each chamber. This tidies up a precedent that arose in 2001, when Representative Ted Deutsch attempted to make a point of order to note the absence of a quorum. Vice President Al Gore ruled that the question was out of order: “The Chair rules, on the advice of the Parliamentarian, that the point of order that a quorum is not present is subject to the requirement that it be in writing and signed by both a Member of the House of Representatives and a Senator.” The “questions” language in the new ECRA tidies up this precedent by making it explicit.
Again, these are nitpicky language changes to the ECA, and the language of the ECRA largely tracks the manager’s amendment from the Senate Rules Committee, which had largely tracked the bipartisan negotiated deal that came from Senators Susan Collins and Joe Manchin. But if you really wanted to know what small changes arose, now you know.
After Celebrating Likely Passage of Bill Fixing the Electoral Count Act, We Must Focus on What Didn’t Make It into the Omnibus to Help Prevent Future Election Subversion
I’m thrilled, as Derek reported, that the must-pass omnibus bill in the Senate includes reform of the Electoral Count Act. As I detailed in this Harvard Law Review Forum piece, Donald Trump and his allies in 2020 tried to use holes, ambiguities and lies about the current Electoral Count Act in an effort to upset the transition of power and keep Trump in office despite his loss. Reform of the ECA is the single most important reform that Congress can take to prevent future stolen elections.
But this reform is far from enough to end the dangers of election subversion. Wendy Weiser notes that “In addition to shoring up the guardrails protecting elections & voting rights, Congress must appropriate adequate funds for state election administration. The $75 million in the approps bill is helpful, but not nearly enough, and far short of the $400 in the president’s budget.”
In addition, I have been arguing for a long time that Congress should have passed a law banning the use of voting machines that do not produce a piece of paper that can be used in the event of a disputed election. For the sake of voter confidence in these times where millions of people doubt the integrity of the election system, having that physical evidence of vote totals is essential.
As I argued in the Harvard piece, we need to clarify the law and stiffen the penalties for those who engage in election subversion. One of the key statutes being used, about obstructing an official proceeding, stems from a financial reform law (Sarbanes-Oxley) and already Jan. 6 defendants are arguing it does not apply to the attempt to interfere with Congress’s counting of electoral college votes.
Moreover, as I argued at Slate last month, even with ECA reform, there is much more that we need to do because we continue to face these dangers:
Second, election-denying secretaries of state won their races in deep-red states like Alabama, Indiana, South Dakota, and Wyoming. These are not swing states, and so it is unlikely to affect the outcome of the presidential election directly. But these kinds of claims encourage lawlessness and undermine voter confidence in election integrity—confidence which is absolutely essential to keep things going. So long as election denialism spreads, our democracy is not safe.
Third, Trump is still the leader of the Republican Party, and he’s completely committed not only to perpetuating lies about the last election but to doing whatever it takes to win the next one. That could include encouraging violence among his supporters, including those in police forces and the military. We cannot exclude the possibility of more extreme tactics next time around.”
Fourth, Trump could well run for office and win fairly in 2024, and then seek to change the rules for conducting elections so that he or his cronies and successors can remain in power. There’s no knowing what such a second Trump term would look like, but it would be a graver threat to democracy than the first.
Finally, once Trump leaves the scene, the next Trump-like candidate may be more effective at organizing for election subversion. Trump had the will but not the talent to manipulate the political system to end our democracy. The 2020 election was a test run for our democracy and we barely passed because of the courage of enough people in power. Now, with so many people believing that our elections can be stolen, the fragility of our democracy cannot be taken for granted as some of them eventually serve in positions of power in elections.
So I’m thrilled about the big step forward Congress is going to take. It’s a moment for celebration. But then let’s not let our guard down.
Senate’s Electoral Count Reform Act included in omnibus
The text of the omnibus bill has been released, and the bill includes the long-anticipated amendments to the Electoral Count Act. The text is almost identical to the Electoral Count Reform Act, the bill drafted and negotiated by Senators Susan Collins and Joe Manchin in a bipartisan group, then amended lightly in a thoroughly bipartisan Senate Rules Committee hearing led by Senators Amy Klobuchar and Roy Blunt. The text in the omnibus is the same as the text of the Electoral Count Reform Act as it came out of committee, with quite minor technical and parliamentary changes.
Election law scholars (myself included) were supportive of the specific details of this effort. Over at The Conversation, I highlight the major points of this bill. And the bill continues to attract broad bipartisan support (formally in the Senate, 21 Democrats and 16 Republicans have cosponsored, but others have expressed support in other ways, too). Just yesterday, Senator Rand Paul published an op-ed in support of the ECRA. It’s crucial for a bill to have broad, deep, and genuine bipartisan consensus, not token or minimal bipartisanship: in future political disputes, regardless of the partisan valence, the parties have the buy-in to adhere to the rules that they’ve agreed to well before any disputes arise.
“Clock Is Ticking on Chance to Fix the Electoral Count Act; Reforms likely to be folded into the spending bill, but disagreements remain between the House and Senate versions.”
“Lofgren, Cheney Request Technical Fixes to Electoral Count Reform Act”
Reps. Zoe Lofgren and Liz Cheney were the primary sponsors of the House’s version of Electoral Count Act reform, which was passed by the House earlier this year. That bill is unlikely to proceed now, with attention focused instead on the more bipartisan Electoral Count Reform Act (ECRA), sponsored by a group of senators led by Susan Collins and Joe Manchin. Leaders in both parties have expressed a desire to prioritize ECRA for passage by the end of the year.
When the Senate Rules Committee advanced ECRA before the midterms, they made a handful of changes that addressed some of the House’s concerns, such as narrowing the circumstances under which a state is authorized to hold an emergency extension of voting. I discussed the committee’s changes to ECRA here.
Now, in a letter to their Senate counterparts, Lofgren and Cheney have honed in on two additional technical fixes they would still like to see before final passage of ECRA. So far, senators haven’t publicly responded, and it’s unclear if there’s any appetite for further changes at this late date. If any are made, it would likely entail a single amendment package adopted on the floor of the Senate at the same time ECRA is attached to another must‐pass bill, such as the expected continuing resolution or the omnibus spending package….
“Ethics Chair Struggles Over Whether Giuliani Crossed A Line”
Kate Buehler at Law360:
The chairman of a D.C. ethics committee deciding whether Rudy Giuliani violated legal ethics rules by filing a lawsuit aimed at overturning the 2020 presidential election results in Pennsylvania said Thursday he was struggling to determine the point at which zealous advocacy could become frivolous litigation.
Committee Chairman Robert C. Bernius, a Nixon Peabody LLP senior counsel, admitted he was having a hard time walking that thin line as a four-day virtual hearing on Giuliani’s role in helping former President Donald Trump challenge election results came to an end Thursday. The committee is expected to issue a ruling next week.
Giuliani engaged local counsel and a team of investigators in Pennsylvania and elsewhere before launching the federal lawsuit challenging the election results, which, Bernius said, probably represents more diligence than the ordinary lawyer would have undertaken before filing a complaint.
“I’m trying to distinguish this case from any other case where a lawyer brings a claim, and it’s tossed under a motion to dismiss,” he said. “How do you identify one as improper and one as perfectly appropriate under the zealous representation doctrine?”
Buehler has been following the hearings closely, including pieces “DC Panel Questions Giuliani’s Thinking Behind Pa. Voter Suit” and “Giuliani Wrangled ‘Chaotic’ Trump Campaign HQ, Staffers Say.” The Washington Post also has some coverage.
I Spoke with Vox’s “The Weeds” Podcast: “The Bipartisan Bill That Could Protect Elections”
Greg Sargent: “New Trumpist threats in Arizona make electoral college reform urgent”
At first glance, the spectacle of the Incredible Shrinking Kari Lake might be cause for optimism. Lake is contesting her loss in the Arizona governor’s race, but in so doing, she’s shriveling into an almost cartoonish figure with no hope of prevailing — a sign, along with the defeat of other key election deniers, that this year’s outcome has sharply diminished the denialist threat.
But on closer inspection, the efforts by Lake and other Republicans allied with her — which include refusing to certify election results — show that the threat of Trumpist election denialis very much alive. This strengthens the case for fixing the Electoral Count Act of 1887, which would safeguard against such threats in the future.
Unfortunately, some election reformers are worried that mending the ECA might not get done in the lame-duck session. That would mean it doesn’t get done at all once Republicans take control of the House next year.
“I’m deeply concerned,” Matthew A. Seligman, a legal scholar and longtime proponent of ECA reform, tells me. “It’s getting late. I’m concerned that things are slipping.”
Election law scholar Richard L. Hasen adds that he’d like to see Democratic leaders “affirmatively” declare that ECA reform is a lame-duck “priority.”
“There’s no way Republicans in the House are going to move anything changing the rules that Donald Trump tried to exploit,” Hasen told me. Trump’s 2020 election-theft effort tried to exploit many of the ECA’s flaws, and thereform under considerationwould close off those pathways to a future stolen election.
Versions of ECA reform have advanced in the Senate and the House, but it’s hard to see either passing as a stand-alone bill with only a few weeks left in the lame-duck session. That would chew up valuable floor time with much else left to do, including funding the entire government.
So, the most likely option at this point, a congressional aide tells me, is for ECA reform to get attached to thatend-of-year spending bill. It’s reasonable to worry this might not happen, or to remain vigilant until it gets done.
The case for attaching ECA reform to a spending bill is complicated. Right now, 10 GOP senators support the Senate version of reform — the number required to overcome a filibuster. Yet even ifECA reform were to geta stand-alone vote, Trumpist GOP senators — such as Josh Hawley of Missouri or Ted Cruz of Texas — could seek to derail it with poison-pill amendments.
What’s more, a stand-alone vote could raise the profile of ECA reform, subjecting it to attacks from Trump and others. That could drive away some of those 10 supportive GOP senators. Attaching reform to a spending bill might get it through with less attention.
What the litigation path of eligibility challenges to Donald Trump may look like
If I had a crystal ball into the future of litigation surrounding Donald Trump’s candidacy for the Republican presidential nomination, I would project something like this: In January 2024, administrative tribunals in Illinois and New Hampshire will issue the first decisions on the merits examining whether Trump is eligible to appear on the ballot for the presidential primaries. That will be the first merits decision in a torrent of litigation with an unknown future.
I’ve exhaustively followed presidential qualifications challenges in recent years (including a string of 2016 challenges), and I hope to offer at least a modestly informed take of where things might go. This post is a short-ish walk through what that might look like (with no examination on the merits, only the election qualification litigation process). Of course, others may sue (or attempt to sue) earlier, and there are other avenues where the litigation may lead, but this is the most likely way forward.Continue reading What the litigation path of eligibility challenges to Donald Trump may look like
Amending the Electoral Count Act doesn’t concede that Trump was right about Pence’s role on January 6, 2021
I’ve seen occasional (and perhaps we’ll see them grow increasingly frequent) comments about proposals to amend the Electoral Count Act of 1887 make a similar argument. Amendment proposals (including the Electoral Count Reform Act) will expressly provide that the President of the Senate’s role is “ministerial.” Doesn’t that mean (some wonder) that President Trump had a point ahead of January 6, 2021: that Vice President Pence did in fact have some discretion to refuse to count electoral votes, and now Congress is scrambling to stop it in the future?
No, for three reasons.
First, proposals presented to President Trump and to Vice President Pence called for Pence to ignore the Electoral Count Act. They argued that the Act is unconstitutional and that the President of the Senate could simply ignore it. Those arguments rested on a different premise: that the President of the Senate, not Congress, counts electoral votes. (I trace, and reject, some of these arguments here and here.) And amending the Act really doesn’t change that.
Second, one can clarify ambiguities in a statute without conceding that the ambiguities should have been construed to grant the President of the Senate any power under the Act (and, again, see the first point about the actual arguments advanced ahead of January 6, 2021). Clarifying ambiguities provides important value: to prevent future confusion or attempts to exploit those ambiguities in ways inconsistent with the Act.
Third, others have suggested there are existing ambiguities inside the Electoral Count Act that they desire future Presidents of the Senate to exploit in the future. (For that, see my post here.) Cutting off the threat of future problems is an important component of ECA reform, and it’s addressing an issue different from the reactions to past experienced weaknesses in the law.