by Michael C. Dorf
Yesterday, Stephen Miller crammed himself into the clown-car of sycophants making absurd claims on behalf of the would-be Clown-Tyrant-King Donald I. With a claim as deranged and dangerous as any to have oozed out of the skull of Rudy Giuliani or to have emerged from the depths where Sidney Powell's Kraken lurks, the immigrant-hating Goebbels look-alike announced on FoxNews that in multiple states that Trump lost, "alternate slates" of electors were getting together to vote for Trump anyway.
Students of history will recall that such alternative assemblies have played a key role in revolutionary challenges to the established order, usually stating some pretext of a claim to lawful authority. For example, the 576 French citizens who took what came to be known as the "Tennis Court Oath" lacked the power to declare themselves the National Assembly under the rules of the ancien régime; they claimed authority in virtue of the fact that together they comprised all but one member of the Third Estate, barred from their ordinary meeting chamber by soldiers loyal to Louis XVI. Despite the self-described National Assembly's weak claim to existing authority, its actions were followed in less than a month's time by the storming of the Bastille. Louis XVI went to the guillotine three and a half years later.
Unlike the National Assembly circa 1789, Trump's bogus electors are not even the rump of a lawful body. The Trump electors are more like the "soviets"--workers' councils that played a role in the 1905 and 1917 Russian Revolutions despite initially having no legal claim to political power. If one were to rank these unlawful assemblies in order of most to least legitimate authority, the French National Assembly would outrank both the early soviets and the Trumpian alternate electors. But that ranking hardly matters. There is no threshold of legitimacy under the old regime that one must cross in order to establish a new one. The most dubious legal claims to power backed by unlawful force can generate regime change because, during a revolution, might makes right.
Will the Trump soviets succeed? That is likely a bridge too far even for the majority of House Republicans who signed an amicus brief to the Supreme Court in last week's preposterous original jurisdiction case. Yet it would be a mistake to dismiss as absurd the threat posed by Trump, Giuliani, Miller, and the rest of these maniacal buffoons. From ancient times, many of history's worst tyrants were men with few talents save ruthless ambition.
More to the immediate point, it is possible to imagine the likes of Representatives Mo Brooks, Jim Jordan, Louie Gohmert, and perhaps a handful of the other Trumpiest members of Congress not only voting to reject Joe Biden's electors from Georgia, Michigan, Pennsyvlania, and Wisconsin but actually to accept the alternate electors despite the fact that their ballots will arrive at the Capitol bearing the imprimatur of no state authority save what they have proclaimed for themselves. Should that occur and should at least one ambitious worm of a Senator--Rand Paul? Ron Johnson? Ted Cruz?--go along, Congress will be required to go through the motions of evaluating whether the votes cast by the duly appointed Biden electors or those cast by the Trump "alternate slate" are real.
If there is a glimmer of sanity in what Miller is proposing, it's that in his FoxNews rant, he suggested that he doesn't think the alternate electors have authority on their own, but that they needed to declare themselves in the event that between now and January 6, some lawfully established authority (such as a state legislature or state or federal court) strips the Biden electors of their authority and confers it on the Trump electors. Trump's least authoritarian defenders can point to the 1960 precedent of the Democratic electors in Hawaii--who met and voted for Kennedy without state authorization while a competing slate of Republican electors for Nixon was certified.
However, legal developments since 1960, in particular Bush v. Gore, have changed the landscape. In that case, the Supreme Court relied on the Electoral Count Act's safe harbor provision to stop any further recounts or state changes at a point that we already passed a week ago in the current election cycle. Maybe the Court was wrong in Bush v. Gore. Citing the 1960 Hawaii case, Justice Stevens objected to the Court's conclusion that the recounting had to stop in advance of Florida's certification, but to state the obvious, he was in dissent when he made that point.
Meanwhile, there are crucial factual differences between Hawaii in 1960 and the current situation. The 1960 presidential vote in Hawaii was a dead heat in which a recount and litigation were ongoing when the Electoral College met. Indeed, Kennedy had already overtaken Nixon in the Hawaii recount by that point. Thus, the Republican Governor of Hawaii ultimately sought to replace the original certification of the Nixon electors with the Kennedy electors, based on the recount. And Nixon himself--as presiding Vice President--approved of the replacement. If the Democratic Governors of Michigan, Pennsylvania, and Wisconsin are presented with evidence that Trump and his collaborators have somehow failed to find anywhere, and if they find that evidence persuasive that Trump really won their states, then perhaps they can convert Trump's ersatz electors into genuine ones based on the 1960 Hawaii precedent. But because that won't happen, the votes cast by Trump's alternate electors will remain meaningless.
Or will they? As of yesterday, Miller wasn't claiming that the alternate electors have any power on their own, only if some authority confers it on them. That was yesterday. Anyone who thinks Trump and his lackeys will be restrained by anything but force has not been paying attention. Suppose, as seems extraordinarily likely, that no judicial or state legislative action between now and January 6 confers any lawful authority on the alternate slates of electors. Do you think that Trump, Giuliani, Miller, Brooks, Jordan, and their restive base will then throw in the towel? Remember how they just wanted time for their cases to play out in court? And then when those failed, how they exerted pressure (backed by violent threats from their supporters) on local and state elected officials? And then when that failed, how they purported to name alternate slates--but supposedly only to keep their legal options open?
There is no bottom. When no lawfully established authority confers power on Trump's alternate electors, the ground may shift again. On January 6, we can expect some number of Trump collaborators in Congress to point to the language of 3 U.S. Code § 15 prescribing the electoral-vote-counting procedure for handling "papers purporting to be certificates of the electoral votes" and treating the self-important papers filed by the Trump alternate slates as just such purported certificates.
To be sure, it is absurd to read the statutory language to apply to any papers purporting to be certificates. If all it takes for a paper to count as purporting to be a certificate under the relevant Code provision is for the paper to so declare itself, then there's nothing to stop anyone in the country from organizing alternate slates. Why stop at four or six states? Why not alternate slates of Trump electors in California (or for that matter, "new California")? Let's have thousands of alternate slates for each of the fifty states plus many more for the fictional new states.
Presumably any fallback plan of counting alternate electors certified by no state authority will fail because Democrats control the House and it's too absurd even for most Republicans. But let's be clear. No plan is too absurd for Trump or his inner circle. It would barely surprise me if, after he fails in Congress on January 6, he turns to an "alternate Congress." If he could get away with it, the malignant narcissist of a president whose administration began in alternative facts would use alternate electors to establish an alternate and wholly illegitimate government.
Professor Matt Adler and I wrote an article that was published in the 2003 Virginia Law Review in which we used what we thought was a far-fetched hypothetical example to make a larger point. We asked readers about the legal status of a piece of paper purporting to be a federal statute but one not passed by Congress; instead, it was the output of "a group of self-styled patriots meeting on a Washington, D.C. tennis court." How naïve we were to think this was a far-fetched scenario in a mature and stable democracy. Or perhaps our naïveté consisted in thinking that we lived in such a polity.