Opinion:
The Republican blueprint to steal the 2024 election
Opinion by J. Michael
Luttig
Updated 6:12 AM ET, Wed April 27, 2022
J. Michael Luttig,
appointed by President George H. W. Bush, formerly served on the US Court of
Appeals for the Fourth Circuit for 15 years. He advised Vice President Mike
Pence on January 6. The opinions expressed in this commentary are his own. View
more opinion at CNN.
(CNN)Nearly a year and a
half later, surprisingly few understand what January 6 was all about.
Fewer still understand why former President Donald Trump and Republicans persist in their long-disproven claim that the 2020 presidential election was stolen. Much less why they are obsessed about making the 2024 race a referendum on the "stolen" election of 2020, which even they know was not stolen.
January 6 was never about a stolen election or
even about actual voting fraud. It was always and only about an election that
Trump lost fair and square, under legislatively promulgated election rules in a
handful of swing states that he and other Republicans contend were unlawfully
changed by state election officials and state courts to expand the right and
opportunity to vote, largely in response to the Covid pandemic.
The Republicans' mystifying claim to this day
that Trump did, or would have, received more votes than Joe Biden in 2020 were
it not for actual voting fraud, is but the shiny object that Republicans have
tauntingly and disingenuously dangled before the American public for almost a
year and a half now to distract attention from their far more ambitious
objective
That objective is not somehow to rescind the
2020 election, as they would have us believe. That's constitutionally
impossible. Trump's and the Republicans' far more ambitious objective is to
execute successfully in 2024 the very same plan they failed in executing in
2020 and to overturn the 2024 election if Trump or his anointed successor loses
again in the next quadrennial contest.
The last presidential election was a dry run
for the next.
From long before Election Day 2020, Trump and
Republicans planned to overturn the presidential election by exploiting the
Electors and Elections Clauses of the Constitution, the Electoral College, the
Electoral Count Act of 1877, and the 12th Amendment, if Trump lost the popular
and Electoral College vote.
The cornerstone of the plan was to have the
Supreme Court embrace the little known "independent state legislature"
doctrine, which, in turn, would pave the way for exploitation of the Electoral
College process and the Electoral Count Act, and finally for Vice President
Mike Pence to reject enough swing state electoral votes to overturn the
election using Pence's ceremonial power under the 12th Amendment and
award the presidency to Donald Trump.
The independent state legislature doctrine
says that, under the Elections and
the Electors Clauses of
the Constitution, state legislatures possess plenary and exclusive power over
the conduct of federal presidential elections and the selection of state
presidential electors. Not even a state supreme court, let alone other state
elections officials, can alter the legislatively written election rules or
interfere with the appointment of state electors by the legislatures, under
this theory.
The Supreme Court has never decided whether to
embrace the independent state legislature doctrine. But then-Chief Justice
William Rehnquist, and Justices Antonin Scalia and Clarence Thomas in separate
concurring opinions said they would embrace that doctrine in Bush v. Gore, 20 years earlier, and
Republicans had every reason to believe there were at least five votes on the
Supreme Court for the doctrine in November 2020, with Amy Coney Barrett having
just been confirmed in the eleventh hour before the election.
Trump and the Republicans began executing this
first stage of their plan months before November 3, by challenging as violative
of the independent state legislature doctrine election rules relating to early-
and late-voting, extensions of voting days and times, mail-in ballots, and
other election law changes that Republicans contended had been unlawfully
altered by state officials and state courts in swing states such as
Pennsylvania, Wisconsin, North Carolina and Michigan.
These cases eventually wound their way to
the Supreme Court in
the fall of 2020, and by December, the Supreme Court had decided all of these
cases, but only by orders, either disallowing federal court intervention to
change an election rule that had been promulgated by a state legislature,
allowing legislatively promulgated rules to be changed by state officials and
state courts, or deadlocking 4-4, because Justice Barrett was not sworn in
until after those cases were briefed and ready for decision by the Court. In
none of these cases did the Supreme Court decide the all-important independent
state legislature doctrine.
Thwarted by the Supreme Court's indecision on
that doctrine, Trump and the Republicans turned their efforts to the second
stage of their plan, exploitation of the Electoral College and the Electoral
Count Act.
The Electoral College is the process by which
Americans choose their presidents, a process that can lead to the election as
president of a candidate who does not receive a majority of votes cast by the
American voters. Republicans have grown increasingly wary of the Electoral
College with the new census and political demographics of
the nation's shifting population.
The Electoral Count Act empowers Congress to
decide the presidency in a host of circumstances where Congress determines that
state electoral votes were not "regularly given" by electors who were
"lawfully certified," terms that are undefined and ambiguous. In this
second stage of the plan, the Republicans needed to generate state-certified
alternative slates of electors from swing states where Biden won the popular
vote who would cast their electoral votes for Trump instead. Congress would
then count the votes of these alternative electoral slates on January 6, rather
than the votes of the certified electoral slates for Biden, and Trump would be
declared the reelected president.
The Republicans' plan failed at this stage
when they were unable to secure a single legitimate, alternative slate of
electors from any state because the various state officials refused to
officially certify these Trump-urged slates.
Thwarted by the Supreme Court in the first
stage, foiled by their inability to come up with alternative state electoral
slates in the second stage, and with time running out, Trump and the
Republicans began executing the final option in their plan, which was to scare
up illegitimate alternative electoral slates in various swing states to be
transmitted to Congress. Whereupon, on January 6, Vice President Pence would
count only the votes of the illegitimate electors from the swing states, and
not the votes of the legitimate, certified electors that were cast for Biden,
and declare Donald Trump's reelection as President of the United States.
The entire house of cards collapsed at noon on
January 6, when Pence refused to go along
with the ill-conceived plan, correctly concluding that under the 12th Amendment
he had no power to reject the votes that had been cast by the duly certified
electors or to delay the count to give Republicans even more time to whip up
alternative electoral slates.
Pence declared Joe Biden the 46th President of
the United States at 3:40 a.m. on Thursday, January 7, roughly 14 hours after
rioters stormed the US Capitol, disrupting the Joint Session and preventing
Congress from counting the Electoral College votes for president until late
that night and into the following day, after the statutorily designated day for
counting those votes.
Trump and his allies and supporters in
Congress and the states began readying their failed 2020 plan to overturn the
2024 presidential election later that very same day and they have been
unabashedly readying that plan ever since, in plain view to the American
public. Today, they are already a long way toward recapturing the White House
in 2024, whether Trump or another Republican candidate wins the election or
not.
Trump and Republicans are preparing to return
to the Supreme Court, where this time they will likely win the independent
state legislature doctrine, now that Amy Coney Barrett is on the Court and
ready to vote. Barrett has not addressed the issue, but this turns on an originalist
interpretation of the Constitution, and Barrett is firmly aligned on that
method of constitutional interpretation with Thomas, Alito, and Gorsuch, all
three of whom have written that they believe the doctrine is correct.
Only last month, in a case from North Carolina
the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas,
Gorsuch and Kavanaugh) said that the independent state legislature question is of
exceptional importance to our national elections, the issue will continue to
recur and the Court should decide the issue sooner rather than later before the
next presidential election. This case involved congressional redistricting, but
the independent state legislature doctrine is as applicable to redistricting as
it is to presidential elections.
The Republicans are also in the throes of
electing Trump-endorsed candidates to state legislative offices in key swing
states, installing into office their favored state election officials who deny
that Biden won the 2020 election, such as secretaries of state, electing sympathetic
state court judges onto the state benches and grooming their preferred
potential electors for ultimate selection by the party, all so they will be
positioned to generate and transmit alternative electoral slates to Congress,
if need be.
Finally, they are furiously politicking to
elect Trump supporters to the Senate and House, so they can overturn the
election in Congress, as a last resort.
Forewarned is to be forearmed.
Trump and the Republicans can only be stopped
from stealing the 2024 election at this point if the Supreme Court rejects the
independent state legislature doctrine (thus allowing state court enforcement
of state constitutional limitations on legislatively enacted election rules and
elector appointments) and Congress amends the Electoral Count Act to constrain
Congress' own power to reject state electoral votes and decide the presidency.
Although the Vice President will be a Democrat
in 2024, both parties also need to enact federal legislation that expressly
limits the vice president's power to be coextensive with the power accorded the
vice president in the 12th Amendment and confirm that it is largely ceremonial,
as Pence construed it to be on January 6.
Vice President Kamala Harris would preside
over the Joint Session in 2024. Neither Democrats nor Republicans have any idea
who will be presiding after that, however. Thus, both parties have the
incentive to clarify the vice president's ceremonial role now.
As it stands today, Trump, or his anointed
successor, and the Republicans are poised, in their word, to "steal"
from Democrats the presidential election in 2024 that they falsely claim the
Democrats stole from them in 2020. But there is a difference between the
falsely claimed "stolen" election of 2020 and what would be the
stolen election of 2024. Unlike the Democrats' theft claimed by Republicans,
the Republicans' theft would be in open defiance of the popular vote and thus
the will of the American people: poetic, though tragic, irony for America's
democracy.