Perspective 50. January 6: A Plot to Overturn the Election?

The invasion of the Capitol on January 6 was undoubtedly one of the most unbecoming moments in U.S. political history. But was it more than the violent outburst of extremists? Did it also involve a plan to nullify a valid election and keep Trump in power by undemocratic means?

Yes. Recent accounts (such as the new book by Bob Woodward and Robert Costa) make it clear that Trump was pursuing a game plan in which the rioters were simply stage props. An outside legal figure -- one John Eastman -- was brought in to convince Vice President Pence that he had the authority to hold up certification of the electoral votes of key states.

In perspective, the only really comparable case was the election of 1876, in which three southern states -- Florida, Louisiana, and South Carolina -- submitted two competing slates of electors and Congress had to decide which to accept. It established a Commission that voted along party lines and Republican Rutherford Hayes was declared the winner even though he lost the popular vote.

As it happens my M.A. thesis, some eons ago, was on this ignominious election. But at least there were two slates of electors, each with some legal claim, that Congress had to choose between. Unfortunately for Trump, he did not have opposing slates of electors that he could press Republican Congressmen to support.

But this seems to be the direction in which he is headed. Eastman and others have latched on to the Electoral Count Act of 1887, adopted in an attempt to prevent a repeat of 1876. One unfortunate clause in that law provides that state legislatures can appoint their own electors if the state "failed to make a choice."

This opens the door to Republican majorities in the states, claiming voting fraud or irregularities, throwing out the initial results and substituting their own electors. As discussed in a previous post, this idea has already gained currency in Trumpian circles.

The same expedient might be used if Congress simply refused to certify a state's electoral votes, on any pretext. It was argued that the Vice President, as overseer of the certification, could hold up or even refuse to certify a state's electors, thus returning the issue to the state legislature.

What would have happened if Mike Pence had agreed to go along with the gag? Let's not forget that 121 House Republicans voted to reject Arizona's votes for Biden, and 138 to reject the returns from Pennsylvania. What would have happened had the Republicans been in the majority, and had they united behind the plot?

And what does this indicate for the presidential election of 2024, following moves in several states to curb the power of independent election officials who inconveniently denied claims of widespread fraud?