State Legislatures Are Still the Key to Trump’s Election-Coup Efforts

Trump was being strategic, not simply chaotic, in inciting the mob on January 6. Photo: Tayfun Coskun/Anadolu Agency via Getty Images

The slow drip of details about the activities of Donald J. Trump and his associates just before and during the January 6 Capitol Riot is beginning to bring into focus their actual strategy for stealing the 2020 presidential election. Recent reports make it clear that Team Trump wasn’t just flailing around wildly or aiming at chaos as an end in itself: There was a plan, however radical and implausible, for halting the confirmation of Biden’s election long enough to allow for the theft of electors by Republican state legislators in key states.

This became the only plan for Trump after Vice-President Mike Pence rejected his pleas to either count phony Trump electors in states carried narrowly by Biden or to adjourn the joint session of Congress quickly to give legislatures time to intervene and name Trump electors, as The Guardian reports:

[O]n at least one of those calls, Trump also sought from the lawyers at the Willard ways to stop the joint session to ensure Biden would not be certified as president on 6 January, as part of a wider discussion about buying time to get states to send Trump electors.

The fallback that Trump and his lieutenants appeared to settle on was to cajole Republican members of Congress to raise enough objections so that even without Pence adjourning the joint session, the certification process would be delayed for states to send Trump slates.

It is very likely, if not necessarily provable, that Trump wanted his mob of supporters to head to the Capitol for the same purpose: not just to wreak havoc, but to stop the final confirmation of Biden’s win in hopes that Republican legislators would finally intervene to revoke the certification of Biden electors.

Seen from this perspective, the entire frenzied series of actions Team Trump took after Election Day had the same object: the rejection of Biden’s popular-vote victories in states with Republican legislatures (including Arizona, Georgia, Michigan, and Pennsylvania) on grounds that state decisions allowing more liberal rules for mail ballots in 2020 illegitimately usurped the sovereign power of legislatures to supervise federal elections and to name electors (under Article I of the U.S. Constitution, which provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof”). Indeed, that rationale for disputing the election was apparent when Trump spoke on Election Night, demanding that the Supreme Court stop states from counting of mail ballots, as I noted at the time:

[The] claim — that extended state mail-ballot deadlines unconstitutionally extend the federal Election Day — is a theory quite a few conservative jurists have embraced. (Depending how you look at it, that number includes three or four Supreme Court justices.) That sort of challenge could be launched to stop the tabulation of mail ballots received after Tuesday in two of the states still unresolved at this point, North Carolina and Pennsylvania.

The same theory, without the “stop the vote counting” remedy, was later pursued by Trump and his allies to dispute the Arizona, Georgia, Michigan, and Wisconsin elections on grounds that executive-branch officials in those states usurped decision-making powers legislatures were not allowed to delegate under Article I of the U.S. Constitution. Indeed, for all the talk by Trump’s deranged lawyers about alleged incidents of fraud in this or that place, the object all along was not to win some judicial reversal of the results, but simply to muddy the waters enough to make it possible for legislators to intervene and take over the determination of electors, as Barton Gellman concluded at The Atlantic after reviewing the whole record:

[T]he strategic objective of nearly every move by the Trump team after the networks called the election for Joe Biden on November 7 was to induce Republican legislatures in states that Biden won to seize control of the results and appoint Trump electors instead. Every other objective—in courtrooms, on state election panels, in the Justice Department, and in the office of the vice president—was instrumental to that end.

And it came closer to happening than was fully appreciated then or now. The day before the vote in Congress confirming Biden’s win, there was news from Pennsylvania, Gellman writes:

The Republican leaders of the Pennsylvania Senate, who had resisted pressure from Trump to nullify Biden’s victory, had just signed their names to a letter averring that the commonwealth’s election results “should not have been certified by our Secretary of State.” (Bannon thanked his viewers for staging protests at those legislators’ homes in recent days.) The letter, addressed to Republican leaders in Congress, went on to “ask that you delay certification of the Electoral College to allow due process as we pursue election integrity in our Commonwealth.”

Team Trump was convinced that with further delays in Congress, other Republican legislative leaders might follow, Gellman recalls: “The letter from wavering Pennsylvania state senators suggests that the situation wasn’t quite so black-and-white; the dams were beginning to crack.”

The more famous Pence gambit appears to have compounded one radical constitutional theory (the absolute sovereignty of state legislatures in regulating federal elections as derived from Article I of the U.S. Constitution) with another (the absolute power of the veep to conduct the tabulation of electors on January 6 however he wanted under the 12th Amendment to the U.S. Constitution). Under both theories, the Electoral Count Act of 1887, which governed the 2020 procedure for determining the results, is unconstitutional. And both theories were articulated in the famous Eastman Memo, which was the operating manual for the White House in the days leading up to January 6.

Believe it or not, for all the litigation over the election coup, the U.S. Supreme Court never squarely contradicted the sovereign-state legislature theory, instead dismissing lawsuits aimed at overturning the award of electors on procedural grounds (either standing to sue or mootness). One justice who might have gone along with the Trump constitutional theory about legislatures, Amy Coney Barrett, recused herself from a key decision on Pennsylvania’s state-court-extended mail ballot deadline because she wasn’t on the Court when the case was originally argued.

So of the two radical constitutional theories Trump advanced to overturn his defeat, one (the unconditional power of the veep to reject certification of electors) won’t be available to him in January 2024, since Kamala Harris will be in the seat occupied by Mike Pence in 2021. But the other, the legislative-supremacy theory, could come back with a vengeance, assuming Republicans hang on to control of legislatures in the states where Biden had the narrowest margin of victory (an easy assumption to make given the likely Republican tide in 2022 and the gerrymandering GOP legislatures are conducting to entrench their majorities). Any resistance in state-legislative ranks to a coup might well be silenced in advance if Trump’s 2022 efforts to purge 2020 “traitors” like Georgia governor Brian Kemp and Secretary of State Brad Raffensperger and place more reliable MAGA folk in key positions succeed. And perhaps a Trump-shaped judiciary, led by a Supreme Court majority featuring three Trump appointees (including Barrett, who won’t recuse herself next time around) might bless the idea that state legislatures can brush aside the “unconstitutional” Electoral Count Act and the will of voters to award the presidency to the nominee of their own party.

Anyone inclined to scoff at the suggestion that Trump is preparing a new election coup should look back at prophecies by Gellman and others that accurately predicted what happened in 2020, while contemplating exactly why Trump is investing so very much in placing the entire Republican Party in lockstep support of his Big Lie. He seems to have learned from his failures, and if he loses the popular presidential vote a third time in 2024, he will be prepared to seize victory anyway.

Legislatures Are Still Key to Trump’s Election-Coup Efforts