Jason Willick in The Washington Post:
“Legal scholar (and Post contributing columnist) Edward B. Foley argued last year on the Just Security blog that ‘there are reasons to be wary of prosecuting any claimed electoral votes sent to Congress.’ Describing the false slates of electors sent to Congress after the 1876 presidential contest between Samuel J. Tilden and Rutherford B. Hayes, Foley wrote: ‘Openly asserting that one is the duly appointed elector of state, even when that claim is utterly without merit — as it was in the case of the supposed South Carolina electors for Tilden, and as it would have been even more so with respect to any Vermont electoral votes purportedly cast for Tilden — is to make an argument about one’s status under the law. It is not an attempt to dupe recipients with counterfeit papers.’
“One difference between 1876 and 2020, as Foley noted, is that Trump’s claims of having rightfully won the election were implausible, while Tilden’s were not. That could be an argument for criminalizing Trump’s elector scheme since the intent was more corrupt. …
“Congress’s 2022 reform to the Electoral Count Act streamlines and professionalizes a process that was too vulnerable to political exploitation. It clarifies that the only slates of electors Congress may accept are those duly certified by a state’s governor; gives courts the final say on certification disputes; and explicitly limits the role of the vice president. The reform shuts the door on the idea that “alternate” electors can change an election outcome. …
“Meanwhile, the 2020 election prosecution of Trump might become the defining issue of the 2024 campaign. The Justice Department is asking the judge to police the former president’s public comments related to the case. If Trump is the Republican nominee, courts and prosecutors will be intertwined in the electoral process as never before. …
“The legal proceedings will render a judgment on Trump’s efforts to subvert the electoral count. But we might look back and decide that this prosecution was so consumed with vindicating the last election in the eyes of some Americans that it ended up poisoning the next one in the eyes of others.”