Since Donald Trump lost the election, he and GOP state legislators have suggested that the race was marred by voter fraud, and Trump administration officials have been publicly talking about Trump remaining president. On Friday, Vice President Mike Pence reportedly told a conservative group that there is already a “plan” for a second Trump term.
Though Republicans have not produced any evidence to substantiate the fraud claims, they have continued to promote the fraud allegations — which could serve as a rationale for state legislatures, Republican electors and Mike Pence to try to use the Electoral College system to hand Trump a second term.
The unlikely-but-possible scenario revolves around the prospect of competing slates of electors. That situation has only arisen once in the modern era, when in 1960 then-vice president Richard Nixon faced a decision on whether to recognize Hawaii’s Republican or Democratic electors during the joint session of Congress to certify that year’s election results.
The mini controversy spotlighted the pivotal role that the vice president can potentially play in the Electoral College system — and according to Harvard University law professor Larry Lessig, it should worry everyone right now.
In an interview with The Daily Poster, Lessig explained how Vice President Mike Pence could try to recognize slates of Republican electors sent to Congress from five Biden states where GOP legislators have started voicing allegations of voter fraud. In that situation, the Republican-controlled U.S. Senate would be in a position to decide on Pence’s move — and if they backed him up, Lessig says they could potentially throw the presidency to Trump.
So far, GOP leaders in four of those states are saying they will not try to replace Biden electors with Trump electors in defiance of certified election results.
Lessig’s group Equal Citizens is launching a petition on its website that calls on Republican U.S. senators to commit right now to uphold elector slates that represent the will of the popular vote in all states.
What follows is an excerpt of The Daily Poster’s discussion with Lessig. The transcript has been edited for clarity and brevity.
Do you think it is a real possibility that Trump and the Republicans can use the Electoral College system to steal the election?
We have a very creaky and poorly thought-out system for moving from the vote that people cast for president to the actual inauguration of a president. And that system has worked, so long as both parties act in good faith. And so in good faith, Al Gore walked away from a contest in December of 2000. In good faith, Richard Nixon walked away from a contest in December of 1960. And that's the way the system has worked. It has depended on good faith.
If one party doesn't act in good faith, making up claims of fraud, making up challenges to the ordinary process, the system is extremely fragile and no one really knows how it spins out of control. Especially if the vice president is aligned with the party who is acting in bad faith.
What does the vice president have to do with it?
We have to back up to see where he enters this story. The people vote, and the votes in the states determine who the electors from each state are. And as this happened in every single election since 1876, states send one slate of electors to the Electoral College and those electors vote for the candidate they've been sent to support... And the process for counting those votes is one that the vice president oversees.
The Constitution makes him the custodian of the electoral votes, and he opens them and Congress then counts them. And so long as there's one slate from every state, there's no problem, but if he opens them and there's more than one slate from a state, then, all sorts of shenanigans could unfold.
Let's start with where the dispute could start, which is at the state legislative level. How possible is it for Republican state legislatures to choose a slate of electors different from the one chosen by voters, and do states have laws preventing this from happening?
This theory that the state legislatures have the power to appoint a slate of electors contradicting the results of the election has been pushed by the right wing radio talk show, host, Mark Levin. There are two grounds on which you might rest that theory.
One is federal law (which) says that if a state has decided to pick its electors through an election, and that election has "failed," then the legislature can select the slate of electors in another way.
The other ground that this theory could rest on is just the Constitution itself. And that's what Mark Levin says, that Article II of the Constitution gives the state legislatures the power to pick whatever slate of electors they want... But there are problems with each of these theories…
If you say that it's a "failed" election, you actually have to show it was a failed election. You can't just make up the idea that there was fraud here. You've got to establish that there was fraud. And if there was fraud that somehow undermines the election, then maybe we should be able to talk about this as being a failed election. But there's been nothing that's established that there is any kind of fraud…
That means we have to look at the constitutional argument. And the constitutional argument has three fundamental flaws with it. The first fundamental flaw is, the Constitution gives the legislatures the power to pick the electors, no doubt, but it also gives Congress the say on what day... Congress said the electors will be selected on November 3rd. November 3rd has already happened. And the only electors that can be appointed under federal law are the people who are appointed on November 3rd. There's no power for the state legislatures now to appoint a slate of electors because obviously it's after November 3rd.
The second problem with it is that this power that Levin says legislatures have –– the power to ignore what the people have said in an election –– no legislature ever in the history of the nation has exercised (it). No legislature has ever thought it had the power to veto the vote of the people and pick its own slate of electors. So this power that Mark Levin says is (in) our Constitution, is a power that just has never been exercised by anyone.
And the third problem with this claim is in relation to the Supreme Court's unanimous decision in July about the power that electors have. In that case, the question was whether electors, people who actually cast the vote, can cast their ballots however they want... what the Supreme Court said was, it may be that originally electors had this discretion, but democracy has overtaken the framers' design.
What about the idea that the Republicans can manufacture a political context and environment outside of the scope of the current law, that then creates the conditions for the state legislatures to change their state laws. Is that possible?
You're right to worry about what the political environment empowers these legislatures to do. They're not empowered by the law. I think the law is clear. But in this political context, if they can raise enough anxiety or panic about these elections…
Let's imagine that these five (Biden states with Republican) state legislatures do appoint another slate of electors. And let's imagine that the slates of electors cast their ballots on December 14th and they send their certified results to Mike Pence and Pence opens them on January 6th and begins to process them…
The Arizona slate gets opened up, and there's one slate that purports to be for Joe Biden, and another slate that purports to be for Donald Trump. Now, this turns out to be really important. Arizona has a Republican governor. So imagine the Republican governor signs the slate for Donald Trump...
Under the rules for counting electoral votes, the vice president could say, I've got two slates here, I'm going to recognize the slate signed by the Republican governor. There would be an objection. And if there's an objection that's signed by both a senator and a member of the House of Representatives, then the two bodies would separate, the senators would walk back over into the Senate, and they would decide whether they're going to uphold the objection or reject it.
Now we can imagine that the Democratic House will vote to uphold the objection. They'll say that Biden's slate should be counted. Then the question is whether the Republican Senate votes to reject the objection. So let's start with the most partisan assumption — let's assume all the Republicans hang together. That means that the houses have disagreed about which slate should be counted. And if the houses disagree about which slate should be counted, under the rules for counting the slate of electors, it's the slate of electors signed by the governor that gets counted. So that means it would be the Republican slate that gets counted.
But here's why that would be a very stupid move for the Republicans to make. Because of the five states that this game could be played in, three states have Democratic governors and only two states have Republican governors, Arizona, and Georgia. So that means if they counted the slates that the governors of count have assigned, Joe Biden would still have enough votes in the electoral college, because he would have Michigan, Wisconsin, and Pennsylvania, and that would put him over 270. So that's not what they would do if they're going to play this game.
Instead, what they would do if they're going to play this game, is that the houses would separate, the Republican Senate would vote to affirm the Republican slate of electors, the Democratic house would vote to affirm the Democratic slate of electors. That means that both houses have not voted to reject the move by the vice president to count the Republican slates. And if they don't reject the move by the vice president to count the Republican slate, the Republican slate gets counted. And so what that means is, if the houses disagree, Mike Pence's ruling stands and Mike Pence's ruling would be, on the assumption we're making, would be for the Republican slate in all five of those cases. And he would therefore count Donald Trump and himself into the presidency.
If voters want to call their elected officials to ensure that the popular vote in their state is respected, which politicians should they be pressuring?
We are launching a petition on our website at equalcitizens.us. that calls on Republican senators to affirm that they are not going to vote against the vote of the people in any of these states.
What is the actual vote you are asking those senators to commit to casting?
So again, the scenario we're imagining is Arizona comes up, and there's a Republican slate signed by the governor and the Democratic slate that is in accord with the certification of the secretary of state in Arizona. And Mike Pence says, I believe the Constitution gives the Republican legislature the power to appoint their electors however they want, because I've read the words of the great constitutional scholar, Mark Levin, and that's what he has said. Immediately there's an objection filed to the ruling of the chair and each body that has to decide how it's going to vote on the objection.
And what the objection is saying is no, you can't recognize the Republican slate. You have to recognize the Democratic slate, the Democratic House will vote to say, we agree with the objection and the Republican Senate will have to vote to decide whether it's going to agree with the objection.
So five Republican senators would have to vote with the Democrats in the Senate to say that they believe that the objection should be sustained…
Who exactly sends each slate to Mike Pence in the Arizona example?
The legislature is not involved. The governor is not involved. The secretary of state is not involved. The secretary of state and governor and legislature are involved for the purpose of selecting who the electors are. In Arizona, there will be 11 people who believe that because of the election results, as certified by the secretary of state, they are the electors for the state of Arizona. They will then gather in a room, and they will cast their ballots according to the 12th Amendment, and they will sign them and certify them in the way the 12th Amendment says, and they will send them to Mike Pence, and Mike Pence will receive them. And Mike Pence, on January 6th, will open up the ballots from Arizona. And under the scenario we're talking about, there'll be one slate who purports to be voting for Joe Biden and another slate that purports to be voting for Donald Trump.
So in this example of two slates being sent from one state, the vice president is the initial judge of which slate of electors is valid, and Congress is the ultimate arbiter?
I don't think there's any question as a matter of law about the power that the vice president has. I don't think the vice president has any legal power to judge which slate of electors ought to be counted... But as a matter of practical political power, the vice president is also the presiding officer over the joint session of Congress that is counting the electoral votes. And as the presiding officer, he gets to say what he wants. And so when he opens the certificates, as the presiding officer, he can say, as presiding officer, I deem the Republican slate from Arizona to be the slate that will be counted.
And when he says that, it's open for Congress to overturn the presiding officer's ruling, that's what happens with any presiding officer, but the only way they get to overturn it is if both houses agree that it ought to be overturned. So that's where the source of this really dangerous power in the vice president lies.
What are the odds that all of this actually happens?
I'm quite certain that if ten Republican senators said tomorrow, hell no, I'm never going to vote against the vote of the legitimate vote of the people in any state, it would all fizzle out tomorrow.
But if the Republican senators continue to... play along with the president's suggestion, that there's a reason to question these results, and the political movement, which is being fueled by right-wing media right now, to get people to demand that those Republican state legislatures 'do their duty' as Mark Levin has put it, I'm scared, because if they 'do their duty' as Mark Levin conceives of it and creates an alternative slate of electors, that begins to trigger in people's minds, the possibility. And that possibility is certainly there that Mike Pence plays this game in the way I've described it. And then at that stage, it really depends on the senators standing up in the face of a real possibility of electing president Trump.
Isn’t there also a question of whether Mike Pence plays along?
Right there are many, many profiles in courage here. And this is not actually the original profile in courage because, from my perspective, at least what they would be doing is doing the right thing against great pressure from the other side. But regardless, the mini profiles in courage are at least five Republican senators saying, we believe in democracy over Donald Trump, and the mini profile in courage would be Mike Pence saying, I'm not going to sacrifice democracy for Donald Trump and Mike Pence.
What terrifies me about it is, it's clear that somebody is thinking about the violence that follows. We have a fired Defense Secretary and a replacement of pretty senior people in the Defense Department. What is that for? Why would you even waste your time as the president right now worrying about firing your Defense Secretary?
From the standpoint of, they will do whatever it takes to win, I'm telling you that's the path that they would have to follow in order to win.
Photo credit: Wikimedia Commons / Gage Skidmore.
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