Conservative legal luminary J. Michael Luttig already helped save the United States from an election coup in January 2021, when he made the clinching argument that convinced then-Vice-President Mike Pence that he did not have the constitutional power to interfere with the routine confirmation of Joe Biden’s Electoral College victory. He has also helped build support among his fellow conservatives for reforms to clarify how disputed presidential elections are to be resolved in the states and in Congress.
Now as the clock ticks down on the opportunity to reform the Electoral Count Act of 1887 before the 2022 midterms upset the current configuration of power in Washington, Luttig has penned a blunt warning that Donald Trump and his party are planning to perfect the election coup they clumsily pursued in 2020. He wrote at CNN:
The Republicans’ mystifying claim to this day that Trump did, or would have, received more votes than Joe Biden in 2020 were it not for actual voting fraud, is but the shiny object that Republicans have tauntingly and disingenuously dangled before the American public for almost a year and a half now to distract attention from their far more ambitious objective.
That objective is not somehow to rescind the 2020 election, as they would have us believe. That’s constitutionally impossible. Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.
The last presidential election was a dry run for the next.
Luttig lucidly lays out the three-pronged strategy Team Trump pursued to try to reverse the outcome of the 2020 election after the 45th president falsely claimed victory late on Election Night.
- Trying to get the federal courts to invalidate state-court-imposed election procedures that helped Biden by invoking an obscure constitutional theory that such powers are reserved for state legislatures.
- Getting fake Trump electoral-vote slates set up in close states carried by Biden.
- Overturning congressional confirmation of Biden’s win on January 6 via a coup implemented by Pence.
The first strategy failed when, on various grounds, the federal courts refused to accept cases asserting the “independent state legislatures” doctrine. The second failed when Republican legislatures didn’t authorize Trump Electoral College slates. And the third failed when Pence refused to play ball and then an effort to challenge Biden electors in various states fell far short of the required majority under the Electoral Count Act.
Now, says Luttig, with the benefit of time and experience, Republicans are gearing up to do it all over again in 2024 and get it right this time:
Trump and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote …
The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be.
Finally, they are furiously politicking to elect Trump supporters to the Senate and House, so they can overturn the election in Congress, as a last resort.
There isn’t much that can be done about the Supreme Court ratifying the independent-state-legislature doctrine, though, as election-law expert Matthew Seligman explained to me in an email, “the practical impact of such a ruling might be modest — even if state constitutions don’t constrain state legislatures, the federal Constitution unquestionably does.” With the 2022 midterms forecast to be a red wave, it will be tough to stop Republicans from maintaining or expanding their control of state legislatures and election offices. The one thing opponents of an election coup can get done if they move expeditiously is to fix the Electoral Count Act “before the politics of 2024 make that impossible,” as Seligman warns.
Electoral Count Act reforms under discussion in Congress would provide for a judicial resolution of state-level disputes over electors and sharply limit the possibility of the vice-president or Congress overturning the results. These negotiations have proceeded on two tracks. One is in the House Select Committee on January 6, as part of its inquiry into what might have happened on that fateful day, and the other involves a bipartisan task force of senators headed by Republican Susan Collins of Maine. Given the need for 60 Senate votes to amend this ancient law, the bipartisan group offers the best, and probably the only, prospect for reform before we enter the next presidential cycle and the subject becomes overtaken by events.
If that doesn’t happen, and Congress is under Republican management the next time it convenes to count electoral votes, there’s not much doubt that Trump will take advantage of a broken system with greater precision next time, either for himself or for a designated successor. The prospect certainly alarms Luttig, whose constitutional scruples outweigh his likely distaste for Democratic governance. We have now been abundantly warned.
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