I have written this piece for Slate. It begins:
In recent weeks, we’ve gotten an even greater glimpse into Donald Trump’s efforts to discredit and overturn the results of the 2020 election. From the clownish ongoing audit in Arizona to the revelation of Jeffrey Clark’s insane and rejected December plan for the Department of Justice to cajole legislatures in states Biden won into overturning those results to the attorneys being sanctioned for their frivolous Trump election lawsuits, the 2020 election subversion attempt is being shown every day to have been a Keystone Cops Coup.
The crude and failed nature of Donald Trump’s attempt to destroy the 2020 election has made it easy to dismiss as overblown concerns about the integrity of the 2024 election too. After all, court after court rejected attempts by Trump and his allies in the aftermath of the November 2020 count to prove that fraud affected the election results. Despite Trump’s attempts to pressure state election officials, governors, state legislators, and officials at the U.S. Department of Justice like Clark to get state legislatures to meet and declare new electoral college votes for him after the presidential vote was certified for Biden in each challenged state, the system (barely) held, and Trump was removed from office on January 20, 2021.
But there has been a subtle shift in how Trump and his allies have talked about the supposed “rigging” of the 2020 election in a way that will make such claims more appealing to the conservative judges and politicians that held the line last time around. Come 2024, crass and boorish unsubstantiated claims of stealing are likely to give way to arcane legal arguments about the awesome power of state legislatures to run elections as they see fit. Forget bonkers accusations about Italy using lasers to manipulate American vote totals and expect white-shoe lawyers with Federalist Society bona fides to argue next time about application of the “independent state legislature” doctrine in an attempt to turn any Republican presidential defeat into victory….
Now maybe the courts won’t bite on this theory—in 2020, Justice Kavanaugh seemed wary of the argument because it came very late in the process. But it might not take court involvement to create chaos and try to flip election results. A state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.
Should Republicans control Congress in early 2024, they could well accept these arguments as they count electoral college votes, even as such arguments were rejected by a Democratic-led Congress (over the objections of well over 100 Republican members of Congress) in 2020. They might try to count the votes from the state legislature rather than votes reflecting the people’s will. The independent state legislature argument—which would essentially overturn U.S. elections to make the loser the winner—would have an air of respectability that would not depend upon a claim that the election was rife with fraud or stolen, but that the actions of the state’s governor, or courts, or election administrators violated the Constitution by usurping the legislature’s rights. Again, all of this is scarily plausible.
The Jan. 6 insurrection, and Trump’s actions trying to change the electoral college votes in five states, was an attempted coup built on the Big Lie of voter fraud. But the potential coup next time will come in neatly filed legal briefs and arguments quoting Thomas Jefferson and wrapped in ancient precedents and purported constitutional textualism. It will be no less pernicious.