Trump's Next Presidential Run Could End the Peaceful Transfer of Power in America
Courts may not be able to protect against the firehose of illicit tactics and arguments that the Trump team is developing
Donald Trump’s attempt to undo his election loss in 2020 failed for want of a coherent strategy. Now observers ranging from political satirist Bill Maher to election expert Rick Hasen are warning that next time we might not be so lucky. They are right.
The GOP is purging and replacing Republicans who refused to break the law for Trump. Meanwhile, fringe legal theories about how to subvert the election are being workshopped and moved into the mainstream of Republican thought even as we speak. If Trump runs again, a near certainty, and the 2024 election result is close, the country could face a constitutional crisis with a potential for political violence that would make 2020 look tame.
The best way to thwart that outcome is to be prepared for the legal and constitutional vulnerabilities that the Trump team is likely to target—and address them in advance.
American presidential elections require an intricate series of steps from the local level all the way up to a joint session of Congress. Each step requires officials to scrupulously follow their legal obligations. Although courts can intervene and stop bad actors at lower levels early in the process, that becomes increasingly harder at higher levels at later stages.
The process starts with local and state officials certifying the popular vote in each state. Losing candidates with doubts about the accuracy of the counts are supposed to raise challenges in court, a neutral forum, rather than with partisan election administrators whose role is supposed to be purely ministerial, not discretionary. But in Michigan’s Wayne County, Republican members of the board of canvassers tried the latter route and briefly blocked certification. However, they backed down under threat of being swiftly replaced or overruled. Courts are not receptive to outlandish conspiracy theories about miscounted or fraudulent votes, as the outcome of Trump’s many legal challenges showed in 2020.
After this stage, things can get progressively trickier.
Once the popular vote totals are finalized in each state, governors must send a “certificate of ascertainment” to the National Archives, naming their state’s members—electors—of the Electoral College. These electors formally meet and vote in December to elect the president. Additional copies of the ascertainment certificate formally verifying the identity of the electors must also be sent to Congress along with the electors’ votes. Typically, naming the electors is a straightforward process where each party picks its slate in advance and whichever party’s ticket wins a state gets its slate automatically certified.
But a governor can cause real trouble by refusing to certify the electors and claiming unilateral authority to overturn the state’s result. Should this happen, there is no easy workaround. The certificate of ascertainment must come from the state’s governor under federal law, setting up a potential stand-off if a populist bomb-thrower doesn’t fear being in contempt of court. This is not an idle worry: Kari Lake, the Trump-endorsed front runner in the GOP primary for Arizona governor, has declared she wouldn’t have certified her state’s 2020 electors if she had been in office.
Dangerous as such refusals to certify either the vote totals or the electors could be, they rest on pure lawlessness. There is no credible legal argument for them—and that offers its own kind of constraint because most officials want to at least seem to be acting within the law.
That, however, is not the case with some of the other tactics that were used in 2020 and are now being finessed for 2024. They rely on arguments under the Electors Clause in the U.S. Constitution and offer a patina of false legality.
This clause gives each state legislature the exclusive right to decide its own method of elector selection. Every state has opted for popular election or awarding its electoral votes to the candidate who obtains the most votes in the state. As with any law, however, there are administrative details to be worked out by the executive side and in some cases modified by the court. It was these changes, particularly with regard to absentee and early voting in light of the pandemic, that Trump and his supporters in Congress challenged. And since such executive and judicial actions are inevitable in every election, they offer a ready-made basis for post-election objections.
Even when based in a plausible constitutional objection, these kinds of arguments can and should be litigated before the election. They can’t be raised after the fact to retroactively invalidate an election, as the courts repeatedly ruled last year.
But that doesn’t mean Trump’s campaign will back off in 2024. It will likely flood the courts with frivolous lawsuits to sow doubt and confusion if Trump fears an unfavorable outcome.
However, the more radical—and dangerous—move would be to advance novel theories about the powers of state legislators under the Electors Clause as the notorious memo by the conservative legal scholar John Eastman tried to do last time.
Much of the coverage of this memo centered on its sweeping claims about the unilateral power that Vice President Mike Pence enjoyed to refuse to accept states’ electoral votes in his capacity as the president of the joint session in the Senate. But the memo’s far more serious claim was that under the Electors Clause state legislatures can change the rules for picking their electors after the election, if they deem that necessary. It also maintained that some state legislatures had already done so and had even named new slates of pro-Trump electors. None of that was true. The Constitution does not allow state legislatures to change the method of choosing electors after the election. And no state legislature had done so, only minorities of legislators in some states. The Pence gambit failed not only because Pence himself rejected it, but because no state legislature was willing to entertain such an action.
But that might not be the case in 2024 as Republicans who are devoted to the rule of law are replaced by those more devoted to Trump. Republicans won’t hold the vice presidency next time. But if enough GOP-held states dispute who the “legitimate” electors are, they will cue up the final confrontation in the joint session of Congress.
As per the Constitution, the Congress’ role in counting the electoral votes and certifying the results of the election is mostly ceremonial. But thanks to the antiquated 19th century Electoral Count Act even this process is ripe for abuse. This statute lays out the rules and procedures for the joint session. But all that is required under this act to trigger debate over a state’s votes is for one senator and one representative to make a motion to object. It was this provision that Sens. Ted Cruz (R-TX) and Josh Hawley (R-MO), together with a small number of senators and a much larger number of House Republicans, used to raise frivolous objections on January 6. The existence of this option was also no small part why Trump targeted the joint session, inciting the storming of the Capitol.
Even worse than the law’s low threshold is its vague and contradictory standard about what constitutes proper grounds for objections. The text simply says, objections can be based on the claim that the votes were not “regularly given.” But that could effectively mean anything, including claims of voter fraud or constitutional violations that might have already been rejected by the courts.
The joint session itself is beyond the reach of the courts because under the political question doctrine, federal courts are tightly constrained in deciding matters the Constitution clearly assigns to another branch of government. But there is no easy recourse if Congress chooses not to follow the Constitution at this critical final stage. This means the oft-heard notion that the Supreme Court might end up deciding the president after Congress deadlocks, while not totally impossible, is somewhat overstated.
On the flip side, if Trump does legitimately win in 2024, Democrats might try their own extreme measures to prevent him from assuming office. One idea that’s been gaining traction is to use Section 3 of the 14th Amendment which denied eligibility for office to former Confederates who had engaged in “insurrection or rebellion” to declare Trump ineligible. Tempting as it may be, this too relies on a strained reading of the long-defunct provision. The opportunity to bar Trump from future office was through impeachment. That attempt failed. Now Trump might be unfit for office, but he is not ineligible.
Using constitutional formalities to gut constitutional substance is a recipe for chaos. It’s possible the House might disagree with the Senate on who the legitimate president is, resulting in two different claimants trying to take the oath of office on January 20. Or, worse, Congress might choose to anoint a president-elect who plainly lost the election, triggering massive popular unrest. Should that happen, instead of the rule of law, brute force would end up deciding the election.
So what can be done to avoid this outcome? In the earlier stages of the process, court rulings must be respected and enforced. In the later stages, spurious constitutional arguments must be rebutted and discredited to the point that enough officeholders stick to the rules and see the process through to its lawful conclusion. But the most immediate thing Congress can do, plausibly with some Republican support, is to fix the Electoral Count Act. The threshold for objections should be raised, the grounds for valid objections narrowly constrained, and the law should make clear a strong presumption of deference to final decisions from the states and the courts.
The peaceful transfer of power is in large part an American innovation, a precious one worth safeguarding. Both F. A. Hayek and Ludwig von Mises considered democratic elections essential for having a government based on the rule of law that respects individual rights. Moreover, regime uncertainty imposes high economic costs on everyone.
The looming threat of election subversion should be a first order priority for defenders of liberty. The risks of a catastrophic election meltdown can’t be taken lightly.
Copyright © The UnPopulist, 2021.