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.
8 comments:
The range of Professor Dorf’s knowledge, from the French Revolution to the 1960 election, makes responses dangerous: one is always afraid of having missed something of importance. However, two quick points:
1. My recollection is that Miller is Jewish, so both he and Goebbels would probably be offended by the comparison. I have seen, well, heard the latter speak and—allowing for language differences—he was certainly a better orator.
2. I think there will indeed be an effort to block certification (re-certification?) of the Electoral College vote in the Senate, although I believe it will be somewhat half-hearted. Generally speaking, i believe the future of this whole enterprise depends on the performance of Biden as President, and the more general performance of liberal democracies over the next few years. If he (they) show a degree of competence is addressing our numerous problems, Trump and his ilk will likely fade into obscurity. If not, they will be back with a vengeance. Put in slightly different terms, the issue is the failure of our constitutional arrangements, to which Trump is a response, and not the underlying cause. I think there is broad agreement among political scientists on this point.
I'm flattered by Prof. Livingston's introductory point. On the numbered points:
1. Indeed, Miller's Jewish immigrant roots make him a shonda to his relatives. Here's a 2018 piece explaining why by his uncle: https://www.politico.com/magazine/story/2018/08/13/stephen-miller-is-an-immigration-hypocrite-i-know-because-im-his-uncle-219351 A short excerpt gives a flavor of the essay: Miller's forebears "came to the U.S. just a few years before the fear and prejudice of the 'America first' nativists of the day closed U.S. borders to Jewish refugees. Had [Miller's immigrant ancestor] waited, his family likely would have been murdered by the Nazis along with all but seven of the 2,000 Jews who remained in [the shtetl in what is now Belarus]. I would encourage Stephen to ask himself if the chanting, torch-bearing Nazis of Charlottesville, whose support his boss seems to court so cavalierly, do not envision a similar fate for him."
2. I agree in part. Since at least 2008 and probably much earlier, the failure of neoliberal policies to bring evenly distributed benefits has fueled the rise of right-wing populism in such a variety of political systems (Hungary, Poland, Brazil, US, India, Philippines, etc.) that one must look to the policies, rather than the particular flaws in the political systems themselves, for a common explanation. That said, institutions matter somewhat in explaining why, say, Merkel and Macron rather than Alternative for Deutschland and LePen are in power in Germany and France, respectively, while Trump won election in 2016 and maintains a hold on most of one of our two major parties. So I would say that effective performance by Biden is a necessary but not a sufficient condition for breaking the spell of Trumpism.
Moreover, Mike, the back end of section 15--which is the part that would be in play in a "dueling electors" case--begins by referring to a case in which "more than one return or paper purporting to be a return *from a State* shall have been received by the President of the Senate." Surely, "from a State" can't mean "mailed from a State." It means--as in the Hawaii case--that at least *some* state actor has sent to Congress a "return or paper" that purports to be *the State's* submission of its electors' votes. (The possible complication here is that the Twelfth Amendment contemplates the electors themselves transmitting their "lists" to Congress. I think there's no question, however, that that Amendment wasn't contemplating just any ol' group of people who denominate themselves "electors"!)
I regard Marty's point as a friendly amendment and nonetheless one that may not stop the likes of Brooks.
yes!
So, the Petition Clause doesn't open up -- per D.C. v. Heller -- a citizen electors that the government has an obligation to hear? After all, there is some (if you selectively quote it enough) evidence that there was a felt obligation that petitions to the government under the clause be respectfully heard by Congress. Thus, the problems with the "gag rule" in antebellum years. I'm only being partially sarcastic.
The "Tennis Court Oath" bit is interesting. One can also probably cite U.S. history there, including semi-official assemblies set up before the Revolutionary War, including when (in their views illegally or at least unjustly) official bodies were blocked from operating. I'm unsure how much they compare but we are talking about fantasy electors here. So, there needn't be much.
Happy Bill of Rights Day.
The problem with Miller, I think, is that he equates his own “persecution” as a conservative to that of women, minorities, immigrants, etc. It is certainly true that conservatives can feel lonely on college campuses or in liberal cities, and this may well cause a certain amount of pain. However, it seems improbable that this is equivalent to what is experienced by these other groups. If this were a movie, he would fall ill and be rescued by (say) an undocumented immigrant and have Dickensian sort of redemption moment (allowing for the religious difference). But this doesn’t always happen in the real world.
I think the comparison to the Soviets is misplaced. The Soviets were self consciously NOT legal bodies under the existing regime. That was the point. They were revolutionary assemblies, and explicitly declared themselves so. A slate of electors, even "alternate" electors, is not the same thing. Rather, it is the embodiment of a claim to legitimacy under the existing regime. It would have been pointlessly obvious, and no one would have disputed it, to declare that the Soviets were not legal, accredited governmental bodies under the laws then in effect in either 1905 or 1917. But the Trump Alternative Electors from the swing states purport to be just that.
The Electoral College is said to be modeled after the college of electors that selected the Holy Roman Emperor. An analogy to the current Trump/Miller nonsense would be for someone who was not really the Archbishop of Mainz to claim that he was, and to cast a vote on that basis. No legitimate authority, but purporting to have such. An analogy to the Soviets would have been some group of people claiming to have authority INSTEAD of the Holy Roman Emperor, whoever he was and however he was selected. The Soviets didn't claim to be the czar, or to be the Duma, but to supplant them.
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