Trump’s next presidential coup attempt could work

After Election Day, November 3, 2020, President Donald Trump spent 10 weeks participating in the first coup attempt to steal the presidency in United States history. As we know, Trump failed.

If he is reappointed in 2024, however, another presidential coup attempt by Trump is much more likely to succeed – unless faulty laws, enacted in 1845 and 1887 and still in effect today , are repaired.

Most of Congress’s efforts to avoid a repeat of Jan. 6, 2021, have centered on the need to correct the Electoral Count Act of 1887 (ECA) which establishes the process for Congress to count presidential electoral votes. A bipartisan group of senators is currently working on a reform package to fix the CEA.

But it’s a gaping loophole in another antiquated law, the Presidential Election Day Act of 1845 (1845 Act), that creates perhaps the most dangerous opportunity for Trump to steal the 2024 presidential election. .

Any CEA reform legislation that Congress considers and passes in the coming months must close the huge loophole opened up by the 1845 Act.

Trump’s Coup Attempt

The chief architect of Trump’s coup strategy was John Eastman, a lawyer who worked closely with Trump.

The keys to the coup strategy were threefold: Trump’s relentless misrepresentation of voter fraud; ask Vice President Mike Pence to stop Congress from certifying Biden on Jan. 6 as president; and engaging pro-Trump state legislatures in key states where Biden won to reject voter choice and help provide the presidential voters needed to elect Trump.

The coup attempt failed for several reasons, including the “failures” of each of these three elements:

First, there has never been a shred of evidence presented by Trump or anyone else to support the false claims that voter fraud impacted the election. No such evidence has been presented to date.

Second, Vice President Pence has properly fulfilled his constitutional responsibility. Facing intense pressure from Trump — and a crowd chanting “Hang Pence,” while Trump stood silent — Pence ended his ministerial role counting electoral votes at 3:41 a.m. on Jan. 7.

Third, the effort to get leaders of state legislatures and members of battleground states to help overturn election results never took off. This frantic last-minute effort, after Trump allies lost dozens of court cases, appeared like a desperate gimmick.

In 2024, however, national and state Republican elected officials will be better prepared and better positioned to override voters in a presidential election, if necessary, to seize the presidency.

The 1845 Act opens the door for a state legislature after a presidential election to reject their state’s electors’ choice and instead select the legislature’s own presidential nominee by nominating presidential electors to represent the state.

The Constitution and the law of 1845

The Constitution gives state legislatures the power to determine the path in which states choose their presidential electors. Thus, Article II, Section 1, Clause 2 of the Constitution provides that:

Each State designates, in such manner as the legislature thereof may directa number of electors equal to the total number of senators and representatives to which the state may be entitled in Congress […] (Emphasis added.)

Currently, every state legislature in the country has implemented the “way” of choosing voters by delegating that choice to voters on Election Day. While it is constitutional for a state to revoke this delegation and regain the power to appoint presidential electors, it is not politically feasible.

In the early days of the Republic, state legislatures selected presidential electors. But, electors choosing their state electors has been the practice, with few exceptions, since 1828. Since the Civil War, state legislatures have chosen presidential electors only twice – in Florida (1868) and Colorado (1876).

In the meantime, the Constitution gives Congress the power to determine the time of choice presidential voters. Article II, Section 1, Clause 4 of the Constitution provides:

Congress may determine time to choose voters, and the day when they give their votes; which day will be the same everywhere in the United States. (Emphasis added.)

Congress exercised this power in the 1845 Act by establishing the “time” of voter choice as “the Tuesday following the first Monday in the month of November.”

Thus, under the 1845 law, presidential electors are chosen on that day. (Even if the vote count is not completed on Election Day, the choice of voters in a state is recognized as having been made by the voters on Election Day.)

The law of 1845, however, contains a dangerous exception to this rule. The law says that if a state ‘fails to make a choice’ on the designated election day, ‘then voters may be named on a later day in such manner as the State provides by law.” (Emphasis added.)

The 1845 Congress included this exception for two narrow reasons that applied in the early 19th century at that time but do not apply today in the same way.

First, two states at the time required an absolute majority vote to choose presidential electors, and the provision allowed state legislatures to intervene if there was no absolute majority after the vote. This problem does not exist today since no State requires an absolute majority vote during a presidential election.

Second, Congress was concerned that bad weather on Election Day could interfere with the ability of a state’s citizens to get to the polls. In extreme and unlikely circumstances, this could still be a problem today, but a much narrower exception can be drafted to solve this problem without giving state legislatures the ability to appoint state presidential electors after the election. .

Here is the problem with the wording of the 1845 Act in its current form. The 1845 Act gives a state legislature the power to choose presidential electors after the election by declaring that state electors “failed” to make a choice on Election Day.

Thus, the following scenario could occur in 2024.

In the early morning of Wednesday, November 6, 2024, the Associated Press says President Joe Biden narrowly won elections in Arizona and Pennsylvania in close races against Republican candidate Donald Trump. That gives Biden the electoral votes he needs to defeat Trump, in a repeat of the 2020 presidential election.

But, a week later, the GOP-controlled state legislatures in Arizona and Pennsylvania meet in special sessions and, citing the 1845 Act, pass resolutions declaring, without reason, that there was widespread voter fraud. or that there were other voting problems in their states. and therefore the voters “did not make a choice”.

Both state legislatures then quickly passed laws providing for the legislatures to appoint presidential electors. This is consistent with the 1845 Act and its exception which provides that following a “missed choice” by a state, presidential electors shall be nominated in “such manner as the state shall by law provide”.

The Arizona and Pennsylvania legislatures nominate Trump presidential voters to represent the states in the Electoral College, overriding voters’ choice in their states, giving Trump the votes he needs to win in the electoral college and making Trump, not Biden, President.

Does that seem far-fetched to you? Not really.

In light of Trump’s post-2020 election coup attempt and the continued belief of a significant portion of Republican office holders and voters that Biden is an “illegitimate president,” there can be no doubt that Trump would aggressively pursue an effort like this to seize the presidency. if voters reject him again, and some officials and lawmakers might support his efforts.

The final decision on the legality of such an effort would likely end up in the hands of the Republican-appointed majority on the Supreme Court. That is why it is essential that Congress close the loophole in the 1845 Act.

Last summer, the late former acting solicitor general Walter Dellinger crafted legislation to fix the 1845 law and eliminate the ability of state legislatures to override voters’ choice in a presidential election. (I worked with Walter in preparing the legislation.)

The proposed revision would significantly reduce the exception provided for in the 1845 Act:

“Whenever a State has been unable to hold an election for the purpose of choosing voters on the day prescribed by law due to extreme weather or similar force majeure, the Governor of the The State may fix a date for another election to be held no earlier than one week and no later than three weeks after the prescribed election day.

This change would not eliminate the ability to challenge voter fraud in presidential elections, but it would prevent state legislatures after Election Day from substituting their choice of presidential voters for the choice made by voters. That would leave the choice of a president in the hands of voters.

Of course, even if Congress fails to close the dangerous loophole in the 1845 Act, it would still be possible for a candidate or voter to challenge federal due process and equal protection to any voter chosen by a federal legislature. State that rejected the choice. voters. A court ruling could also be sought that the state in question had not “failed to make a choice” on Election Day.

But these legal challenges would be new, and the chances of winning in the current Supreme Court are uncertain at best.

Congressional revision of the 1845 Act is the only sure way to prevent state legislatures from denying their voters’ choice in a presidential election. Congress must act to prevent another coup attempt by Trump or anyone else to ensure that voters, not state legislatures, continue to choose the President of the United States.

Image: WASHINGTON, DC – JANUARY 07, 2021: Vice President Mike Pence and House Speaker Nancy Pelosi, D-California, stand after reading the final certification of Electoral College votes cast in the presidential election of November 2020 during a joint session of Congress, after working through the night, on Capitol Hill on January 7, 2021 in Washington, DC. Congress reconvened to ratify President-elect Joe Biden’s 306-232 Electoral College victory over President Donald Trump, hours after a pro-Trump mob stormed into the US Capitol and interrupted proceedings . (Photo by J. Scott Applewhite – Pool/Getty Images)
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