How a new proposal to stop Trump from stealing the 2024 election could backfire
Donald Trump is acting like someone who is running for president, holding political rallies around the country. If Trump runs, he would be the favorite to win the Republican nomination. Yes, Trump remains very unpopular with the broader public. But, at the moment, President Biden is also very unpopular. If Biden faced Trump again in 2024, one would expect the result to be very close.
That's why it is alarming that Trump continues to insist that his political allies have an obligation to do everything possible to install him as president — regardless of the vote totals. In a statement released Sunday night, Trump slammed efforts to ensure that the will of the voters is respected. And Trump asserted that former Vice President Mike Pence had the power to "overturn" the 2020 presidential election results but "unfortunately" did not exercise it.
If the Vice President (Mike Pence) had "absolutely no right" to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election? Actually, what they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn't exercise that power, he could have overturned the Election!
In a well-functioning democracy, an explicit call for a politician to "change the results of the election" would be universally condemned. But, with a few exceptions, Republican officials said nothing.
Trump also aligned himself with criminals who attacked the U.S. Capitol last January 6. In a Saturday night rally, Trump said suggested that the rioters were being treated "so unfairly." Trump suggested that, if he wins the presidency in 2024, he "will give them pardons."
In another escalation, Trump attacked the prosecutors looking into allegations of his misconduct — including his efforts to overturn the election — calling them "vicious, horrible people," "racists," and "mentally sick." He floated the idea of another round of protests in Atlanta, where Fulton County District Attorney Fani Willis is investigating Trump's efforts to overturn the election result in Georgia, and other locations. Willis asked for the FBI to help provide security for her investigation, which is planning to impanel a special grand jury.
All of this has created renewed interest in amending the Electoral Count Act, which establishes the technical procedures to certify the results of the Electoral College, to make it more difficult for Trump to create chaos in 2024. But some of the proposals misunderstand the nature of the threat and may make it more likely — not less — that Trump could successfully steal the presidency in 2024.
Fighting the last war
The idea that Pence could simply "overturn" the result of the election was a fantasy invented by Trump and his cadre of disreputable lawyers. There is nothing in the law, the Electoral Count Act, to support that. So there is really nothing in the law to amend on that front. In any event, in 2025, Vice President Kamala Harris will be in that role. And there is no chance of Harris following Trump's unhinged demands.
There were, however, 147 Republicans who voted against certifying the election results in one or more states. Under current law, one member of the House and one member of the Senate are required to object to a state's results. If there is an objection, a majority of both the House and the Senate are required to reject the results.
A report by the House Administration Committee Democrats suggests amending the Electoral Count Act and raising the threshold to make it more difficult for Congress to reject a state's results. Instead of a majority vote in each chamber, it would require a "supermajority" — two-thirds of both the House and Senate — to overturn the results.
This seems like common sense because it would make it more difficult for Congress to ignore the will of the people. But it may have the opposite effect.
January 6, 2021, was a frightening day for a variety of reasons. But, in retrospect, Congress did not come particularly close to overturning the election by rejecting state results. Both chambers need to agree for results to be elected and just eight Republican Senators voted to object. Trump would have needed 50 to be successful.
The real threat for 2024
A bigger risk for 2024, detailed in a recently updated paper by Yale Law School fellow Matthew Seligman, is a Trump-supporting Republican Governor in a swing state ignoring the results and submitting a phony certification to Congress.
As Grace Panetta notes in Insider, a strong candidate for such a gambit could be former Senator David Perdue (R-GA), who is currently running for Governor of Georgia. During his Gubernatorial campaign, Perdue said that, had he been governor in 2020, he would not have certified the election results. One scenario, which is not implausible, is that Perdue wins in 2022 and Georgia is the decisive state in the 2024 presidential election.
What happens if Perdue decides to ignore a victory for Biden and instead certify a slate of Trump electors? In that case, the tables will be turned and it would be up to Congress to reject Georgia's phony electors to protect the will of the people. Currently, that would require a majority vote in each chamber. A steep hill to climb, but maybe not impossible with the future of democracy at stake.
The proposal being advocated by some Democrats to require a supermajority to reject a slate of electors would make combating a rogue Governor like Perdue very difficult. A relatively small number of Trump headliners in the House (less than 150) would be all that's necessary for Congress to rubber-stamp a stolen election.
Republicans who have endorsed Trump's false claims of election fraud are also running for governor in the swing states of Michigan, Pennsylvania, and Wisconsin.
House Administration Committee proposal would "authorize candidates to seek injunctive relief" if a Governor submitted an inaccurate slate of electors to Congress. But it's unclear how willing courts would be to intervene in those circumstances. And the idea that the judiciary — and ultimately the Supreme Court — will insulate the process from political gamesmanship is antiquated.
The bottom line
Seeking to strengthen the law to preserve the integrity of American democracy is a noble pursuit. But there is no silver bullet. Ultimately, democracy will only survive if enough people in power are willing to set aside their short-term political interests for the greater good. Our laws formalize this hierarchy but are ultimately just words on paper. It is people who give laws their power.