The second edition of Ballot Battles has gone to press (it’s scheduled for release on May 10), and so I won’t be able to include any discussion of the newly disclosed documents. (Maybe there will be a third edition sometime, depending on what happens this year and into the future?)
Apart from the obvious awfulness of the Trump team’s effort to overturn Biden’s valid victory, which of course we already knew, what strikes me about the scenarios that Chesebro described in these documents are two points:
First, I don’t understand how he could have thought that they would be able to get Pence elected Vice President by the Senate, so that he could serve as Acting President starting on January 20 instead of Nancy Pelosi. Under the Twelfth Amendment, the election of the Vice President goes to the Senate only after the joint session completes the counting of electoral votes and the tally reveals that no candidate won a majority. But the counting of electoral votes would not be complete according to the plan that Chesebro described. Instead, the strategy was to bring the count to a standstill, to run out the clock on the two weeks between January 6 and January 20. But in that circumstance, the election of the vice president would never get to the Senate, and under the Twentieth Amendment (and the congressional statute pursuant to it) Pelosi would have had the right to become Acting President. Thinking that the Senate could have given the election to Pence seems a mistake similar to the one that the Democrats made in the Hayes-Tilden dispute thinking that by delay they could get the House to elect Tilden under the Twelfth Amendment. It didn’t happen the way the Democrats wanted then because the count of electoral votes need to be complete before the House could elect the president, and once the count was complete according to the procedures Congress adopted for the dispute (including the creation of the special Electoral Commission), Hayes ended up with a bare majority and the presidency.
Second, the most dangerous aspect of the Chesebro docs–especially looking to the future instead of the past–is the idea that either chamber of Congress would refuse to adopt the concurrent resolution that is traditionally used to embraces the procedures of the Electoral Count Act. Historically, the way that Congress has bound itself to the ECA’s procedures is by means of a Concurrent Resolution adopted at the beginning of the new Congress before the joint session occurs. Now that the ECA has been amended by the new Electoral Count Reform Act, presumably the same kind of Concurrent Resolutions will be used to put ECRA’s provisions in place for the next joint session on January 6, 2025. One must hope that there won’t be any attempt in either chamber to repudiate the bipartisan work that achieved the much-needed ECRA reforms. To think optimistically on this point, perhaps the strong sense that Chesebro’s machinations were disgraceful will help serve as a disincentive to any consideration of a similar idea in the future.