Can We Prevent a Future Republican Congress from Stealing the Presidential Election?

Note to readers: Several hours after publication, I added what are now the fourth- and fifth-to-last paragraphs of this column, and I edited the paragraph that immediately precedes them.

by Neil H. Buchanan

What will happen if the Democratic nominee in 2024 wins the presidential election, both in the popular vote and in the Electoral College?  As we learned in the first week of 2021, perhaps anything could still happen.  Even setting aside a possible repeat of the domestic terrorism that we witnessed on January 6 -- most likely with greater loss of life, should it come to that -- what if Republicans claim that they have the right to set aside the results of the next election?

In an op-ed that ran in yesterday's Boston Globe, "How to prevent the legal strategy that nearly undid the last election from ending democracy," Larry Tribe, Mike Dorf and I endorse the passage of H.R.1, which would go a long way toward fixing our electoral system's most important problems.  Even so, that was not our main point, because we were mostly thinking about the crazy memo by Trump lawyer (and disgraced former legal academic) John Eastman, which cited a Verdict column that we co-wrote last September regarding the Twelfth Amendment.
Mike and I wrote separate columns last week mocking the Eastman memo, so there is no need to go into detail again here.  Instead, I want to explore how the Democrats today might try to prevent anything like that memo's strategy from working in 2024.  It is not an optimistic situation, to say the least, but it is at least worth working through what could happen.
In the new Tribe/Buchanan/Dorf piece, we use somewhat muted words to describe what Eastman did as a matter of reading our earlier column -- in which we said that nullifying one pro-Biden state's electoral votes would not be enough to throw the election to Trump -- and saying, in essence: "Challenge accepted!  One state is not enough?  How about seven states!  That'll do it, right?"

Our larger concern, however, was to explain why Eastman's supersized strategy was still based on a constitutional absurdity, which involved having the Vice President on January 6 arrogate to himself a non-ceremonial role and start to throw out certain electoral votes while engaging in strategic delays and other chicanery.  As we point out, it is the rare presidential election in America in which the sitting Vice President is not either up for reelection or running for the presidency itself.
Therefore, the entire constitutional design crashes down upon itself if we allow such a person to seize the power to declare himself the winner.  It was bad enough when the sitting Secretary of State in Georgia suppressed enough votes to win the governor's race in 2018.  Eastman's gambit would make that look like child's play.
We note that the most cynical counter-move by Democrats would involve simply endorsing the Eastman strategy, which would then allow Kamala Harris to do what Mike Pence (channeling the suddenly non-mockable Dan Quayle) refused to do -- and, for that matter, what Al Gore refused to do in January 2001, in much more defensible circumstances.  But we reject that idea out of hand, because we are neither nihilists nor cynics.

But in order to understand what is possible and what needs to be done, we need to move back a few steps.  Before anyone could get to a situation in which the January 6 joint meeting of Congress is anything other than a rubber-stamping of long-since-decided electoral results, what would have to happen?

I will emphasize that the entire analysis here takes very seriously the constitutional integrity of what is in fact a political cancer: the Electoral College.  There is no sensible world in which the presidency should be decided through the processes described in the Constitution; but we are stuck with it.  Even so, we should all understand that we are having a conversation which should begin with the following disclaimer: Given that we are stuck with an insane method of choosing the President and Vice President, we should at least try to make sure that it is not allowed to become even more extremely anti-democratic.

With that depressing reality hovering in the background, what does the Constitution require?  For our purposes, the key provision is Article II, Section 1: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress."  Note that this power resides in the states, not at the federal level.  The only thing that Congress can do is laid out later in the same section: "The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States."
For now, we can bracket the separate question of whether "legislature" means that a state's governor and courts are not permitted to weigh in.  Professors Dorf and Tribe (along with Grace Brosofsky) have explained, as have others, that this is in fact an easy call: No, the legislatures cannot supersede their own states' constitutions and act unilaterally.  But no matter how that issue were to be resolved, what would happen next?

Let us say that a state has sent only one set of electors to the Electoral College, and that those votes had been counted when the College gathered on December 14.  Is there any room for a power-hungry Vice President to negate this?  Some Republicans think that they can read the Electoral Count Act (ECA) to allow inconvenient electoral votes to be thrown out, but they are wrong.  Or, to put it more precisely, if the ECA means what these Republicans say it means, the ECA violates the Constitution.

The only constitutionally permitted role for Congress, again, is to determine the "time" of choosing the electors and the day on which they will vote.  The ECA is notoriously poorly drafted, and one tendentious reading of that law sets out a scheme by which Congress can do much more than determine those two things.  Specifically, as we saw earlier this year, it only takes one senator and one representative to trigger an ECA process by which majorities of both houses would vote to throw out electors from any given state that had "failed" to determine a legitimate outcome.

The ECA does require that there be an alternative set of electors, but that is easy enough for a sore loser like Donald Trump to gin up.  The question is, what happens if a state has approved and certified a single slate of electors (no matter which approach, legislatures-only or reality, is adopted), but the Vice President invokes ECA procedures and Congress tosses out the approved electors and recognizes the rogue electors?  In so doing, Congress -- not the state -- would thus appoint the state's electors, which is a clear violation of Art. II, Sec. 1.

To be clear, the ECA's procedure was adopted in response to a situation in which there was genuine confusion about the proper slates of electors from some states in the 1876 election.  The results of that election, by the way, effectively ended Reconstruction and paved the way for White terrorists and Jim Crow to distort the political systems in southern states for more than a century.  We should not allow the ECA to be used to end even the stunted form of democracy that the Electoral College system represents.

The nub of the 1876 problem, however, is still important.  That is, what do we do if there is genuinely an open question about a state's proper slate of electors?  It cannot possibly be the case that the losing candidate can simply send rogue electors from every state that he lost, allowing Congress to override the states' own processes.  At the very least, if a state's election laws provide a clear method that has been correctly followed to produce one set of electors, that has to be the end of the story.  The Constitution surely does not allow Josh Hawley and Ted Cruz to effectively federalize who gets to vote in the Electoral College.

If we were working in a world in which all Democrats were willing to end or suspend the filibuster in order to fix the ECA, there would be many ways to tighten up the flabby and opaque language of that law.  We do not live in that world, however, so it is important at the very least to make it clear that some readings of the ECA unquestionably violate the Constitution's unambiguous language.

As I noted above, none of this is particularly optimistic.  First, it requires relying ultimately on the U.S. Supreme Court to agree to rule on a challenge to Republican abuse of the ECA (which, as a threshold matter, requires the Court to agree not to invoke the Political Question Doctrine).  There are reasons to doubt that the Court would so rule, no matter how clear the Constitution is.
Second, under an un-amended ECA -- and assuming that Republicans have retaken both houses of Congress by January 6, 2025 -- at the very least it will be possible for congressional Republicans to manufacture and then recognize "failed" processes in key states, allowing them to recognize by simple majorities in both houses of Congress as many alternative electoral slates as needed.  That is, even if they do not try to conjure imaginary controversies to put the electoral votes of New York, California, or Massachusetts in play, they will surely be able to get the Republicans in 2024's swing states to put plausible-looking alternative slates of electors up for consideration by Congress.
Here, however, is where I could possibly imagine myself getting behind using the Eastman memo strategically.  Because Kamala Harris will preside over the counting of electoral votes in January 2025, she could announce that she will not recognize challenges to states' electors that are based on falsified or farfetched claims of "failed" elections.  She could thus be the backstop to prevent every swing state's results from being thrown out by frivolous challenges.
I hasten to emphasize that I speak only for myself here, as I have not discussed this with either Professor Tribe or Professor Dorf.  And I am honestly unsure how I feel about it, because it might (or might not) involve having the Vice President exceed her proper role.  I am willing to entertain this possibility even if it is edgy, however, because it would involve having her use her position for the limited purpose of short-circuiting the abuse that would inevitably be encouraged by an expansive reading of the ECA.  It is a more limited version of fighting fire with fire than simply having her do what Eastman wanted Pence to do -- pick the winner.

And to be especially clear, I should say that there is obviously nothing illegal or worrisome about a Vice President's ruling on procedural matters.  For example, Al Gore in 2001 (and, if I recall correctly, Dick Cheney in 2005) was confronted with a challenge to a state's electors from a member of the House, but that challenge was not joined by a member of the Senate.  Even under the probably-unconstitutional version of the ECA that has gone unchallenged until now, Gore did not even approach any iffy lines when he refused to recognize those challenges, precisely because he was mechanically applying the rules as he understood them.
The more aggressive situation that I am imagining would have Harris bringing down the hammer/gavel against a challenge co-signed by, say, Louie Gohmert and Ted Cruz, ruling that the facially kosher challenge does not allege believable facts sufficient to trigger further inquiry.  I do not concede that she would be violating the law in that situation, and I could make a good argument that she would in fact be operating well within the law.  Even so, depending on the full set of facts, I might end up concluding that something like that was possibly too much of a fire-with-fire move, and my sometimes-coauthors should not be implicated in my musings here.

I will close by noting that the Republicans might not even need to be this sneaky.  As I noted shortly after the 2020 election, nothing in the Constitution even requires that the states appoint their electors based on the states' popular votes.  A state could, for example, simply enact a law saying that the legislature will choose the state's electors without popular input.  Even if the legislatures-only theory is rejected, Georgia's or Arizona's Republican-dominated legislatures could pass bills giving themselves that power, and their Republican governors could sign those bills into law.

Anticipating possible political blowback from something so nakedly disenfranchising, such states could instead simply pass laws providing pre-December 14 procedures by which "fraudulent" election results can be set aside.  So long as those procedures were enacted into law before Election Day 2024, which is the current federal statutory deadline for determining the "manner" of appointing electors, the states could do this.

In the end, Democrats are left to make the case to the public at large that the ECA cannot be a backdoor method by which Republicans set aside the results in every state that they might choose to challenge.  Passing real legislation to narrow the ECA to what the Constitution allows would be better, but until some people stop worshiping the filibuster, there is little more that can be done.