Scott Gurvey

It may not be likely that Republicans will steal the 2024 Presidential Election, but it is certainly possible. A new paper by a Yale Law School expert in election law, Professor Matthew Seligman, says all it would take is a single corrupt Republican governor and a Republican controlled House of Representatives. Anyone want to bet that won’t happen?

Let’s make something clear here. I am not generating an ambiguous set of facts. I’m dealing with the universe where a fair and legal election, as determined by state election officials and courts, has occurred, been reviewed, certified and the results have been published. None the less, a Republican majority in the House of Representatives votes to challenge the Electoral College votes from a state and that state’s governor, without any legal authority, then sends to Congress an “alternate” set of EC votes, changing the outcome of the election for President of the United States.

What’s to stop them? A Supreme Court where the Republicans enjoy a 6-3 majority and can just declare it a “political question” and pass the buck back to Congress? Don’t hold your breath.

Opinion writer Greg Sargent of The Washington Post describes the scenario:

Imagine that former senator David Perdue becomes Georgia governor, after winning a GOP primary against Gov. Brian Kemp, who is under fire from Trump supporters precisely because he refused to overturn the 2020 results. Imagine Speaker Kevin McCarthy controlling the House on Jan. 6, 2025.

If a Democrat won the state by a slim margin, and the election came down to it, Perdue could send a rogue slate of electors based on a fake pretext of election fraud, and the GOP-controlled House could simply count those electors. A Democratic Senate might object, but under the ECA, both chambers must object to a slate of electors to invalidate it, so it would stand.

Would courts intervene? Yes, they might command Perdue to send the rightful electors.

But the paper suggests that at such a point, someone like Perdue — already far down the road of lawlessness — might ignore the court’s command and send the fake electors anyway.

The GOP House could count them regardless of the court’s command, the paper posits. At that point, the Supreme Court could decide this is a political question and decline to intervene. Game over.

Greg Sargent, The Washington Post

Another law school professor, John C. Eastman, former Dean at Chapman University School of Law, incorrectly told Vice President Mike Pence in an Oval Office meeting on January 5, 2021, that Pence had the constitutional authority to block the certification. In their book, Peril, reporters Bob Woodward and Robert Costa reported Eastman wrote a two-page memo showing how President Donald Trump and his team tried to persuade Pence to subvert the Constitution and throw out the election results on January 6. The memo contents that the Electoral Count Act is “likely unconstitutional” and describes procedures to circumvent it.

The Eastman memo is frightening to read. What if Pence had bought it? After months of obfuscation by Eastman, United States District Court Judge David Carter ordered Eastman to begin cooperating with the Jan. 6 probe more directly. Eastman previously invoked his Fifth Amendment right when subpoenaed by the committee on Nov. 8, prompting the panel to then subpoena his onetime employer Chapman University for emails and other relevant records.

How would the military respond to a situation with two competing presidents seeking recognition as the Commander in Chief? Woodward and Costa wrote about concerns of General Mark Milley, Chair of the Joint Chiefs of Staff, that President Donald Trump could “go rogue.”

How would the people respond? A CBS News/YouGov poll finds the public overwhelmingly opposed to such a scheme:

Members of Congress have been meeting to see if they can write bipartisan legislation to amend the Electoral Count Act of 1887 to eliminate any loopholes that insurrections might drive an election fraud through. But there is no indication yet of an agreement. Washington Post opinion writer Henry Olsen explains:

The ECA was intended to provide an orderly process in the event of another 1876-style dispute. But both parties in recent years have used the law to object to election outcomes in hotly contested presidential races. It has been manipulated to effectively make Congress a super court that can hear evidence and decide whether a slate of electors was invalidly selected by a state — with Congress being the sole determiner of what invalidity means.

Henry Olsen: Reform of the Electoral Count Act must be bipartisan

It becomes more obvious every day that the Constitution, revolutionary as it was at the time of its creation, could use a good rewrite. There was an assumption on the part of the framers that the participants in the new government would share a desire for its success. And would work to protect its institutions, no matter how severe their disagreements on matters of policy. Today it is clear we have a considerable minority within the government willing to destroy it simply for their own power and ambition. Unfortunately, the procedure for amendments is so cumbersome that route is for long term planners. For now, it is critical that the Electoral Count Act be revised in time for the 2024 election.

More than one commentator has referred to the Eastman memo as a plan for a coup. I agree. It could be fairly said that we were saved by Mike Pence. Think about it.

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