Opinion The Democratic plan to avert a 2024 Trump coup quietly advances

cigaretteman

HR King
May 29, 2001
72,380
52,094
113
As voters approach elections that could elevate political saboteurs to crucial offices in multiple battleground states, Democrats are working to forestall a disaster in 2024. To that end, this week, the House will vote on a bill that reforms the Electoral Count Act of 1887 — in hopes of preventing future efforts to exploit holes in that arcane law, as President Donald Trump tried in 2020.


Sign up for a weekly roundup of thought-provoking ideas and debates

To understand these reforms, you need to become familiar with what one might call “the Mastriano Scenario.”
Imagine that virulent insurrectionist Doug Mastriano, the GOP nominee for governor of Pennsylvania, pulls off a win this November. Then, in 2024, Gov. Mastriano corruptly certifies the state’s presidential electors for Trump or another GOP candidate, in defiance of the popular vote choosing the Democrat. If a GOP-controlled House opted to count those fake electors, they might stand, resulting in chaos or worse.



That could very well happen under the current law regulating such things — the Electoral Count Act — if it is not reformed. Revising the ECA is key to preventing this (among other things) from happening.
The new ECA reform bill in the House — called the Presidential Election Reform Act — is the work of Reps. Zoe Lofgren (D-Calif.) and Liz Cheney (R-Wyo.). The Democratic-controlled House will vote on it within days.
The bill would do a lot of things, such as clarifying that the vice president’s role in counting electors is merely ceremonial. But for our purposes here, what matters is the bill’s safeguards against the Mastriano Scenario.
In this regard, the House bill attempts to improve on another ECA reform bill that a bipartisan group of senators introduced in July. That Senate bill set important standards: It specified that states must appoint electors in compliance with election rules in place before the election, so a state legislature can’t just appoint the popular vote loser’s electors. It established a new judicial review mechanism to oversee that process.











The new House bill goes further in safeguarding against future coup attempts. This is deep in the weeds, but bear with us.
Under the Senate bill, if a corrupt governor certifies electors in defiance of the popular vote, an aggrieved candidate can take it to court. A federal judicial panel would weigh in and designate which electors are the legitimate ones, subject to Supreme Court review. Congress would be required to count those legitimate electors.
But there, a problem might arise. If the corrupt governor simply ignores the new law and disregards what the court said — and certifies fake electors in defiance of that court ruling — then a GOP-controlled House of Representatives could also ignore the new law and count those fake electors.

The House bill adds an additional safeguard: If a corrupt governor defies that judicial panel review and refuses to certify the electors the panel deemed the legitimate ones, the House measure empowers that panel to designate another state official to certify those legitimate electors.


Congress would then be required to count those electors. This would effectively take the weapon out of the hands of the corrupt governor entirely.
“If a rogue governor refuses to do his constitutional duty, this bill authorizes the court to order another state official to do it instead,” legal scholar Matthew Seligman, an expert on the ECA, told us. Seligman noted that this additional safeguard improves on the Senate bill by “strengthening” it against a governor who has gone truly “rogue.”

That “rogue” scenario could happen if Republicans win governorships in swing states other than Pennsylvania. For instance, in Arizona, GOP nominee Kari Lake has made questioning the 2020 election central to her campaign. In Michigan, nominee Tudor Dixon has spread Trump’s 2020 lies.
If an election comes down to one or more states with rogue governors, it would be surprising if they didn’t attempt to run this coup scheme. And given that more than half the members of the next House GOP caucus are expected to be full-blown deniers of the legitimacy of Trump’s 2020 loss, it would be surprising if a GOP House didn’t play along.






ADVERTISING

We shouldn’t have to lean so heavily on the goodwill of state officials to ensure that the person who wins the presidency takes office. But Trump has revealed the enormous flaws in our system, as well as the conscious intent of his supporters and the Republican Party as a whole to exploit them.
Once the House passes ECA reform, the next step will be merging it with the Senate version. It’s absolutely critical to get this done before Republicans take over the House and make preventing the next coup impossible.
 

cigaretteman

HR King
May 29, 2001
72,380
52,094
113
The compromise proposal that Senate negotiators cobbled together earlier this year to reform the 1887 Electoral Count Act was a good start to prevent a repeat of the 2020 coup attempt. But the bill was far from perfect, as testimony before the Senate Rules Committee highlighted.

Sign up for a weekly roundup of thought-provoking ideas and debates

Fortunately, two members of the House select committee investigating the Jan. 6 insurrection, Reps. Liz Cheney (R-Wyo.) and Zoe Lofgren (D-Calif.) put forth their own improved version on Monday, as described in an opinion piece for the Wall Street Journal.

Their proposal makes a number of key changes to the law, which stipulates the certification of electoral votes. For example:

  • It confirms that the vice president has only a ceremonial role.
  • It specifies that members of Congress can only object to electoral votes if they concern “the explicit constitutional requirements for candidate and elector eligibility and the 12th Amendment’s explicit requirements for elector balloting.” Interestingly, the proposal makes clear that one objection might be that the candidate is ineligible under Section 3 of the 14th Amendment, which bars from federal office anyone who “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” In other words, it would serve as a trip wire for challenging former president Donald Trump on the basis that he instigated an “insurrection.”
  • It raises the threshold for Congress to vote on an objection from one lawmaker in each chamber to one-third of each chamber.
The proposal also avoids some of the confusing language included in the Senate proposal regarding state certification. The House version is a helpful and precise description of the correct process:






Governors must transmit lawful election results to Congress; if they fail to fulfill that duty, or another official prevents the lawful results from being transmitted, candidates for the presidency should be able to sue in federal court to ensure that Congress receives the state’s lawful certificate. These suits would occur before Congress counts electoral votes, and should ensure, in all cases where one candidate has the majority of electoral votes, that Congress’s proceeding on Jan. 6 is purely ministerial.
In foreclosing the sort of maneuver that Trump lawyer John Eastman concocted, the proposal makes clear that “the rules governing an election can’t change after the election has occurred.” In short, the state legislature cannot upset the voters’ choice.

Follow Jennifer Rubin's opinionsFollow

And in an inspired bit of lawmaking, the revised ECA would specify that it is a violation of the Constitution to refuse to count and certify ballots according to the rules in effect on Election Day. A candidate can go to federal court to seek an injunction against state officials who refuse to do so. That can then be appealed directly to the Supreme Court. (A treble damage provision is also included in an attempt to deter frivolous litigation.)

Finally, the proposal also clears up the existing ECA and improves on the Senate plan by specifying that the law’s “failed election” provision only applies to “a genuine catastrophic event affecting enough ballots to swing the outcome of the state’ election.”






Norman Eisen, a Brookings scholar who provided testimony to the Senate Rules Committee on the Senate proposal, tells me, “The bipartisan House proposal represents another step forward to getting to a bicameral agreement.” He approves the House version’s expansion of the period allotted to resolve legal disputes over a state’s election result from six to nine days. It also avoids language included the Senate version that characterized a governor’s certification of a state’s results as “conclusive,” reducing “the risk of a rogue governor,” Eisen says.
The bill will come to the House floor this week. If it passes (as is likely on a near party-line vote), it will go to the Senate. The Senate Rules Committee, which took testimony pointing out the flaws in the original Senate proposal, will then take up the House version in the normal process of legislative back-and-forth. In other words, we seem to be inching toward the best version of ECA reform possible.
We will soon find out whether there are 10 Republicans who sincerely want to block future coup attempts by anti-democratic candidates and their shoddy lawyers. Now is the time to construct a significant barrier to prevent a repeat of Jan. 6. With Democratic majorities in the House and Senate at risk, such reform cannot wait until after the midterm elections.

 
  • Like
Reactions: franklinman