Thursday, September 28, 2023

Opinion | The new proposal to prevent a future coup is


As we reported this week, a bipartisan group of senators has been negotiating over complicated reforms designed to thwart a rerun of Donald Trump’s coup attempt. The reforms revise the Electoral Count Act of 1887, which governs how Congress counts presidential electors.

Now, the bill’s text has been released. It’s very similar to what we reported on previously, and the proposal turns out to be a surprisingly good one. All it needs is 60 votes in the Senate.

The simplest way to grasp what this proposal does is to look at what Trump attempted in 2020, and what another losing candidate could attempt next time. What does the new bill do to prevent these things?

Trump pressured state legislatures to appoint electors for him in defiance of the popular vote (they refused). He pushed congressional Republicans to object to Joe Biden’s electors (which partly succeeded, but not by enough). He pressured his vice president to illegally delay that electoral count so he could go back to pressuring the states again (which was rebuffed).

An imitator might attempt a variation on that scheme. He might get a future state legislature to appoint fake electors for him despite losing the popular vote, with the complicity of a corrupt Republican governor — say, a Gov. Doug Mastriano of Pennsylvania — who would certify those electors.

That imitator might then prevail on the Congress — say, one controlled by a House Speaker Jim Jordan and a Senate Majority Leader Ted Cruz — to count the electors appointed by that legislature and certified by that rogue governor. That could tip a close election.

So here’s how the new proposal would address all these points.

First, and importantly, the proposal would require a state to appoint presidential electors in the manner dictated by the state’s laws as they existed before Election Day. As long as every state’s laws require appointment of electors in keeping with the popular vote, this would prevent a state legislature from appointing electors in defiance of that vote.

Second, the proposal would require the governor to certify the correct electors by a hard deadline before Congress counts them. This is supposed to prevent a governor from certifying the electors for the losing candidate.

What if a state legislature and governor simply ignored those requirements and their constitutional duty?

Well, the proposal would allow an aggrieved candidate to trigger expedited judicial review by a federal three-judge panel, subject to expedited Supreme Court appeal. Under the proposal, Congress would be required to count the electors that the courts deemed the correct one.

Here’s the basic principle at play: The aim is to close off manipulation of the process at both the state and congressional ends. In the proposal, Congress bars state legislatures and governors at the front end from breaking their own laws (or the Constitution) dictating the appointment of electors. If they do so anyway, it triggers automatic judicial review and then requires Congress to count the correct electors at the back end.

“This proposal effectively constrains both state officials and Congress to count the true electors,” legal scholar Matthew Seligman, an expert on the ECA, tells us.

The proposal also clarifies that the vice president’s role is purely ceremonial (to preclude disrupting the count). And whereas the ECA currently requires one member from each congressional chamber to force a vote on whether to invalidate electors, the proposal would require one-fifth of each chamber to force that vote.

All this raises difficult questions. For example, can we count on the federal courts to do the right thing?

The problem is someone has to have the last word on which presidential electors count. If not federal courts, would you prefer that last word fall to Speaker Jordan and Majority Leader Cruz?

You could also fall back on state courts as the first judicial backstop. “But state supreme courts can be dominated by partisans too,” Seligman says, “and any such litigation would ultimately end up in the Supreme Court anyway.”

Another thorny issue: Can a current Congress bind a future Congress to count only electors the courts deem legitimate?

That’s a hard question. But it’s plausible a future Congress would have to repeal this new law to relieve itself of that obligation. Which it could do, but that would require a presidential signature, and all that would be hard to pull off amid a contested post-election crisis.

Which raises a final question: What if every actor in the system is corrupted?

What if a state legislature and governor certify the wrong electors? What if a corrupted Congress wants to count those electors? And what if the federal courts — including the Supreme Court — bless those wrong electors as well?

The process of writing this bill has revealed that if enough actors are determinedly corrupt and dominate all corners of the system, there’s no bulletproof set of protections. In the end, making this as difficult as possible may be the only option.

The bill does that, according to Adav Noti, vice president and legal director of the Campaign Legal Center. But, Noti cautions, if all those actors “conspire to subvert an election, there’s not a whole lot you can put on paper that will stop that.”

And that’s when the street fighting starts. If it hasn’t started already.