Trump's crazy plan to steal the election is a long shot, but not impossible
His Electoral College coup may not succeed this time, but it should trouble us nonetheless.
Donald Trump has a plan to steal the election. It’s wacky, audacious, and incredibly complicated. But not impossible.
It goes something like this.
Trump claims massive fraud.
His lawyers sue in every state possible where Joe Biden won, hoping a friendly judge will stop the state from certifying the results, pending an investigation.
Republican officials whip GOP voters into a frenzy over the “stolen” election, increasing political pressure on Republican electeds, and judges, to “do something.” In particular, Republicans start talking about this being a “failed election” in which no one knows who the voters truly intended to elect. (Sens. Kelly Loeffler and David Perdue are already using that language in Georgia.)
Bowing to the will of the people, Republican governors and/or legislatures in states Biden won submit their own slate of Trump electors to the Electoral College. These Trump slates could be in additional to, or instead of, the legit Biden slate. The legality of these alternate slates would have to be debated later, but under federal law, if a “failed election” is declared for a state, the state legislature has the power to appoint its own slate of electors.
On January 6, 2021, a Joint Session of Congress, chaired by the President of the Senate, Vice President Mike Pence, meets to count the electoral votes. If a state has submitted two competing slates of electors, the House and Senate vote on which to accept. If the House and Senate are deadlocked, the slate submitted by the governor is supposed to take precedence.
One possible exception: If one of the slates was filed by December 8, 2020, it is considered within the law’s “Safe Harbor,” meaning it’s supposed to be exempt from challenge in the Joint Session, thus short-circuiting Trump’s strategy. Unfortunately, it’s not at all clear that politically-minded members of the House and Senate will abide by the Safe Harbor protections. So they might challenge the slate anyway, and be deadlocked over its validity. Also, if two such slates are filed under Safe Harbor, or both after the deadline, then we’re still back to a potentially deadlocked House and Senate. The Democratic House will clearly endorse the Biden slate. The Senate, depending on the swing votes of its so-called moderates — e.g., Susan Collins (R-ME), Lisa Murkowski (R-AK), and Mitt Romney (R-UT) — either sides with the Biden slate or the Trump slate.
If the Senate sides with Biden, the Biden slate wins. If the Senate sides with Trump, then you have a divided joint session, and depending which legal scholar you talk to, the slate the governor submitted takes precedence, or both slates are thrown out. (Most scholars agree that the governor breaks the tie, but what if the governor’s a Republican? Also, what judge is going to enforce the fact that the governor’s slate is dispositive, after the Republicans balk — a Trump judge? Maybe, maybe not.)
How do you decide whether the governor breaks the tie, if one side objects? You go to court, and the judge either rules one way or the other, or the court rules the matter non-judiciable because it’s a political decision that Congress needs to make for itself. Then the Congress is still deadlocked, so it’s likely neither slate would be adopted.
What happens next depends on how many Biden states Republicans can effectively steal. If Trump can’t hijack, or otherwise invalidate, the electoral votes of enough states, then Biden still reaches 270* electoral votes and becomes president. If Trump can steal enough to get Biden’s electoral vote count below 270, but Trump’s count still doesn’t reach 270, then, under the 12th Amendment, the election is thrown to the House and Senate individually, with the Senate picking the VP and the House picking the president.
(*Of course, this gets even more complicated, as some legal scholars say that if a state is disqualified from having its electoral votes count, then the winner no longer needs to reach 270 votes, because the overall electoral vote total possible has now changed.)
Back to the House picking the president. Each House member doesn’t get a vote, rather, each state’s delegation gets one vote based on which party controls the majority of the delegation. Any delegations that are split 50% Republican and 50% Democrat, effectively lose their vote. (It’s not clear whether DC gets a vote at all, as it’s not a state. Yet another matter to litigate.) Under this scenario, Trump would likely win in the House, as Republicans narrowly control more House delegations than Democrats. In the Senate, Pence would likely win VP, unless the GOP swing senators went for Kamala Harris instead.
Now, in order to thwart this scenario, Democratic US House Speaker Nancy Pelosi might simply refuse to convene the Joint Session on January 6. And if nothing else happens, she becomes acting-President at noon on January 20th. But what if Pence decides to hold his own Electoral College elsewhere, with or without the Dems, declaring Trump the winner? The Democrats could sue — but again, the court might likely respond that this is a political matter for Congress to decide. In the meantime, the Senate could meet anyway, and pick a vice president — Pence or Harris — who would then become acting-President at noon on January 20th.
It’s a mess.
The conventional political wisdom is that Trump isn’t serious about any of this, and rather, is simply engaging in political theater to appease his fans. Even were this true — and I’m not convinced we should write the threat off so blithely — it’s a dangerous performance.
Trump is yet again tearing down democratic norms, and replacing them with autocratic ones. His message to his 72 million minions, and counting, is that overturning the will of Democratic voters is an acceptable strategy for future elections. And some day, a better smarter Trump will come along, and he might just pull it off.
The conventional legal wisdom is that Trump’s strategy is such a long shot, it should be dismissed out of hand. Maybe. But what if there’s only a 5% chance of Trump successfully ending our democracy as we know it — should we really ignore the dire possibility, even if it requires rolling a snake eyes?
And who says Trump has no chance? The underlying argument of the optimists is that Trump judges will magically put aside their partisanship and extremist views; while Trump Republicans in Congress and the states will, for the good of the country, refuse to overrule the will of the voters. Hallelujah!
What country have they been living in these past four years?
When Donald Trump demands it, Republicans genuflect. And now, Trump is talking about running again in 2024. Will all the Republicans who refused to stand up to Trump now suddenly grow a spine the next time (a) Trump runs?
I’m not convinced that a coup will happen. I am convinced that Trump wants one. And I suspect that most of Trump’s policy making starts with a whim, or a tweet, and then snowballs into something real. The fact that Trump isn’t, or wasn’t, serious about a run-around the Electoral College doesn’t mean he isn’t now, or won’t be some day.
As Trump loves to say at his rallies, “you knew I was a snake when you took me in.” Trump has repeatedly shown us what he’s capable of. It’s time we believed him.
Exactly. Robert Reich had a comforting video asserting Joe Biden will be sworn in on January 20. But when he said something like "and of course the state electors have always reflected the popular vote winner of their state" I thought great, another norm they can trash. This is very worrisome no matter how far it goes. It's shocking to see so many Republican leaders playing along and eroding democracy and faith in our institutions right in front of our eyes.