Perspective 94. Trump's Electoral Scheme: A Real Threat to U.S. Democracy?

The January 6 committee brought out the details of Donald Trump’s attempts to subvert the presidential election of 2020. Clearly what he had in mind, with the help of people who should have known better, was hare-brained and highly illegal. But was it a serious threat to the republic? Did it stand a chance of success?

Yes. The scheme as concocted would have cleverly exploited weaknesses in the creaky electoral college system under which our presidents are chosen. It is astounding that there has not been more of a storm over what Trump was trying to do.

In perspective, it is a miracle that only once before – in the notorious presidential election of 1876 – has this vulnerability actually raised a ruckus. (As it happens, my M.A. thesis was on the 1876 election). The problem is rooted in our weird system for choosing presidents as set down in the U.S. Constitution. Our founding fathers, actually not great fans of democracy, wanted to put the choice in the hands of a select group of “electors” who would be one or two removes from the hoi polloi.

So the Constitution simply provides that each state shall “appoint, in such Manner as the Legislature thereof may direct,” the appropriate number of electors. Over time, with the party system and greater democracy, states turned to competitive elections between slates of electors pledged to their party’s candidate.

But the potential for a state legislature deciding to “appoint” its electors by other methods remains and has even been resurrected by conservative jurists as the “Independent State Legislature (ISL)” theory. This doctrine would free state legislatures from any control by other state bodies (such as courts) in all federal elections, presidential and congressional; and it is due to be tested soon in the U.S. Supreme Court, where four of the conservative contingent have expressed interest.

But what happens when the state legislature is itself divided? This is what happened in 1876, when Reconstruction was giving way to Southern resurgence. Three Southern states sent in competing slates of electors, and in two cases the competing slates were both certified by a part of the state government. So there were genuine grounds for dispute. The matter was settled in a straight party-line vote by a special commission set up by Congress.

This led to the Electoral Count Act of 1887, designed to avoid such controversies in the future. Certification by state governors was to be the key determinant. But if only one Senator and one Representative objected to a particular state’s certification, both chambers were to debate and vote. If the slate were rejected, the matter would presumably be sent back to the state legislature. But before 2021, objections were filed only twice (1969 and 2005) and in both cases they were overwhelmingly defeated.

Now enter John Eastman, putative constitutional scholar, who tells Trump that this offers a path to overturn the election. Let there be a second slate of electors from states won by Biden but with Republican state legislatures. Let the Vice President, presiding over the counting of the vote in the presence of both chambers, declare that the election is in dispute and return the matter to the state legislatures (presumably to “appoint” the Trump electors). Never mind that the Biden electors were certified by the states’ governors. Never mind that Republicans do not have the majority in both houses of Congress (required even by the rickety Electoral Count Act) to sustain an objection.

So Eastman, together with Kenneth Chesebro and Rudy Giuliani (determined to demote himself from “America’s Mayor” to class clown), organize alternate slates of electors in seven states (five of them with Republican majorities in their legislatures). None are certified by any state body (though their “certifications” were facsimiles of the official documents). But if the matter is returned to state legislatures, then under ISL standards they can declare that the previously certified election results were fraudulent, or simply ignore them, certifying the Trump electors and sending Donald back to the White House.

Vice President Pence, to his credit, refused to go along with the gag. This was important, but as he (and most of Trump’s semi-sane advisors) surmised, any attempt on his part to play a role beyond the Electoral Count Act would have been quickly squelched by a unanimous Supreme Court (yes, probably even Thomas). A more serious threat was that 121 House Republicans voted to sustain objections to Arizona’s certified returns, and 138 supported objections to the Pennsylvania slate. This was totally in the framework of the Electoral Count Act. Had Republicans had two more Senate seats, and had all Republicans gone along, Eastman’s fantasy would have become reality.

So where is the alarm? Recently Congress passed some minimal reforms to the Electoral Count Act, clarifying that the Vice President’s role is purely ceremonial and raising the bar for objections to a state’s certification to 20 percent of both chambers. But the ISL demon still lurks in the shadows, and what happens when one party has a comfortable majority in both houses?

There has been one positive development in recent days. The California State Bar has moved toward disbarring John Eastman on charges of knowingly promoting falsehoods and illegal acts.