As Rick Hasen puts it, this is my effort to “Vulcan mind meld” with Stephen Miller. This is not a statement about what is likely. I’m not trying to worry anyone. I’m trying to point to where we should be looking, because so much is focused in all the wrong directions. So let me state it directly: stop with the obsession with the courts (it isn’t happening there) and stop with the attention to Mo Brooks (who is either an idiot or thinks you’re an idiot: Congress is not going to reverse this on its own, even if a Senator agrees with the objection). The only path they have is 3 USC §2, through an as-of-yet-untested theory of state legislative power.
It wasn’t clear until yesterday what precisely the Trump Team’s endgame was. Based on the actions of state legislatures in Georgia, Pennsylvania, Wisconsin, Nevada, and Michigan, and the words of Stephen Miller, we can now piece together their plan.
I should say upfront, for the reasons described below, I don’t think the plan should have a chance in hell. But I’ve been troubled by the wrong and misleading coverage of the plan by too many in the media. Because to the extent that there is any chance here, we need to understand it to prepare for it. There is still stuff that should happen to further protect against anything going wrong. But given the way most are describing what’s going on, that protection seems unnecessary.
The plan is clear, if cryptic, in Stephen Miller’s appearance on Fox yesterday.
First, he announced what we then saw happened — that Republican electors in swing states would meet to cast their ballots for Trump. This step was necessary to preserve any chance of winning through the votes of electors on January 6. It is based on the precedent (declared by Nixon not to be a precedent when he did it) of Hawaii in 1960/1. As I described yesterday, Hawaii had initially certified a slate of electors for Nixon — within the safe harbor deadline of the Electoral Count Act. But then a recount threw the state for Kennedy. The Governor then certified a second slate of electors, based on that recount, and after the vote of the Electoral College. Nonetheless, Nixon ruled the second slate would be counted — even though, under the safe-harbor rules of the ECA, it was the slate for Nixon that clearly should have been counted. No one objected because it didn’t really matter, and because the Kennedy electors had actually voted — as an “alternate slate”—when the Electoral College voted. Thus the ruling was not technically legal (since violating the rules of the ECA), but Nixon thought it close enough for government work.
That’s the same trick the Trump team is counting on this time around too. If there were a newly certified slate of electors — especially one signed by the governor—then Pence would have a strong precedent to rely upon, Nixon’s, to rule the later slate should be counted. Admittedly, as Ned Foley has explained, this precedent is not necessarily correct. Justice Bradley (when sitting on the commission that determined the results in the 1876 election) had said that there’s no such thing as an alternate slate; that electors vote in the Electoral College only if they are then certified to vote in the College. Bradley would have said that Nixon was wrong — that Hawaii could only go for Nixon—and he would certainly say that Stephen Miller is wrong (for many reasons but let’s focus on this one): That no “alternate slate” had any authority to cast ballots yesterday. I like the formalism in Bradley’s opinion. But the practicality is that VP Pence will be required to lay before Congress “all the certificates and papers purporting to be certificates of the electoral votes” (3 USC 15). That certainly will include the votes of the alternate slates. And from that moment on, the question will become political, not legal.
All that is clear enough in the reporting that I’ve read. What’s not been clear has been the authority that might certify these alternate slates. This is the second thing that Miller hinted at yesterday. Yet he did so in such a cryptic way that most seemed to miss it.
The one potential authority that everyone is focused on is the least likely to pan out — for Trump. That authority is the courts. The Trump team hopes some court will finally give in to the conspiracy theories. No court will. But the hope for this authority is that eventually, the Trump team will frame a case that leads a court to reopen the certifications based on the fraud the court “discovered.” That has happened in Pennsylvania before. (Read the story of Pennsylvania State Senator Bruce Marks here.) The Trump team hopes that miracle will happen again.
I’m with most in believing that it won’t happen again. The courts won’t be bent. I don’t believe the Trump team has presented anything that would justify a judicial reversal.
But the critical point here is that that is not the end of the matter — according to them. Even if the courts don’t give them the remedy they seek, there is a second legal authority that the Trump team is relying upon: state legislatures.
This weird theory needs to be stated precisely. It has both a weaker version and a slightly less weak version.
The weaker version is the superpower theory of state legislatures that I’ve already described and rejected: That the Constitution gives state legislatures the power to select electors “at any time”—including after the vote of the people. I won’t repeat all the arguments about why this theory is just wrong. The essence is that the electors had to have been “appointed” on November 3; they can’t be “appointed” after November 3, consistent with Congress’s constitutionally granted power.
The slightly less weak version triggers off of 3 USC §2 — a provision not in the original Electoral Count Act but now codified within its scope. Under this theory, Congress has given state legislatures the power to appoint electors after election day, if and only if the election has “failed.” We don’t have any judicial precedent saying when an election has “failed” under this statute. More importantly, we don’t have any good precedent saying who gets to say when an election has “failed.”
The when question has easy answers, and less easy answers.
The easy answer is the example of the Georgia Senate race. Georgia has a rule that a Senator must be elected by a majority. If, as in this last election, no one gets a majority, then that election has “failed” in the sense 3 USC §2 meant it. When it fails, there needs to be a backup. Georgia has a run-off election. But New Hampshire (which inspired 3 USC §2) had the legislature as a backup — under the rules circa 1845, if no presidential elector received a majority of the votes, then the legislature selected the electors. 3 USC §2 codifies the rule that such a backup is ok.
Call that the paradigm case for 3 USC §2. What beyond this paradigm gets swept within the scope of “failed” is a harder (or less easy) question.
One state has tried to legislate an answer: North Carolina has a statute that expressly enumerates the conditions under which an election has failed. Put most simply, the statute says that if the contest has not been resolved in time (either 6 days before the college votes or the day before the college votes) then the legislature and governor, respectively, get to select the electors. No other state has a statute that expressly references 3 USC §2. So that leaves open the question of what beyond the paradigm case, or the cases previously legislated by state legislatures, is within the scope of “failed.”
The Trump team believes both (1) that an election “fails” when there is a general perception of fraud or uncertainty about its results, and (2) that the state legislature gets to determine when (1) obtains.
This second move is critical. No court is going to declare in the abstract that an election has failed. That means that in a practical sense, if a legislature has not (like North Carolina) described the conditions of “failure” in advance, it would be a legislature (the Trump team believes) that would determine whether an election has in fact failed. The Trump team apparently believes that the Republican legislatures in Georgia, Pennsylvania, Wisconsin, Nevada, and Michigan are free to declare that the 11/3 election did “fail.” After such a declaration, and under 3 USC §2, the Trump team believes the “electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” That “subsequent day” could, under this theory, be any day prior to January 6. If so, we should expect that the efforts to “persuade” or strong-arm legislatures will continue through January 6.
Now again, to be crystal clear, I think as a legal matter, all this is bullshit. A state legislature has no constitutional authority to “appoint” electors after election day — except as Congress has allowed. And 3 USC §2 allows a much narrower range of “failure” than the ravings of self-interested conspiracy theorists. Properly interpreted, as a legal matter, this election is over.
But here’s the key that the Trump team is banking on: whether the courts would ultimately police this question is itself a very hard question.
If, on December 31, 3 state legislatures declare that they’ve become convinced that the November election had “failed” in their state, as specified in 3 USC §2, and if they, therefore, claim the power Congress has purportedly given them to appoint a slate in whatever “manner” they choose, it is not at all clear that any court would have any power to question this act by these legislatures. No doubt, lawyers would run the circuitous race to the Supreme Court — an injunction in a district court, directly appealed to the Supreme Court—but what if the legislatures do this on January 5? My point is not that it is clear that no court could stop them. My point is that it is not clear that any court would have the time (or capacity) to stop them.
The only thing that could stop them then would be the resolve of Republicans in the United States Senate. This is why we’ve been petitioning for weeks now to get key Republicans to commit that they would never recognize the vote of a slate of electors chosen against the legitimate vote of the people in a state. If we could get just 5 to make that commitment—openly and publicly—then that would take the wind out of the sails of this insanity. But so far, the Senators have not made that commitment. So that leaves the Trump team with ample motive to continue this fight. (You can sign our petition here.)
Ok, so tl;dr:
The Trump team has collected the votes of five alternate slates.
(1) Those slates are not going to be certified because of any judicial decision that says that the elections were fraudulent.
(2) And Congress is certainly not going to vote to recognize those alternate slates: Such a vote, at a minimum, would require the concurrence of both Houses of Congress; obviously, the House is not going to so vote.
(3) The only hope the Trump team has for getting these alternate slates counted would be for state legislatures to declare that they consider their elections “failed,” thereby triggering 3 USC §2.
As explained above, I don’t believe that argument is true, legally. But as explained above, I do fear how that argument gets processed, politically. It’s clear enough that such a move would trigger a revolution. It’s not clear that that’s not exactly what they want to happen.