Below is my column in The Hill on the ability to challenge key state electoral certifications. With the negative decision in Pennsylvania, Trump’s legal team is still promising new evidence of massive fraud after completing the certifications. The options for the team seem increasingly reduced to the ultimate constitutional trick obtained in developing a fight on the floor of Congress.
Here is the column:
The press conference on Thursday from President TrumpThe legal team left many breathless as Trump attorneys Rudy Giuliani claimed a global communist conspiracy to steal the 2020 elections. While temporarily referring to credible election challenges regarding interim ballots or “cure rules”, he repeatedly reverted to charges of an alleged massive conspiracy ordered by the Democrats to alter and “inject” nationals’ votes.
It was a strange tale that seemed to move from the provable to the unbelievable. The question is why?
One way: to make sweeping allegations with insufficient time to force an electoral college fight. The idea would be to give Republican-controlled lawmakers permission to intervene with their own voters or block voter submission. Concerns about such a strategy grew when Trump called key Republican leaders from Michigan’s legislature to the White House on Friday.
Let’s call it the “Death Star Strategy”.
In “Star Wars” a fighting rebellion was on every front against an overwhelming force in the Empire on the retreat. The rebels only had one strategy and literally one shot. Luke Skywalker had to scan the surface of the Death Star along a trench and shoot a lap into a small thermal vent to drive down an air shaft and cause an explosion in the nuclear reactor. Then crap! No more death star.
However, if that’s the Trump team’s plan, Luke Skywalker’s shot looks like a beanbag throw.
The voting pit
The “ditch” in this case is in state electoral systems that lead to the electoral equivalent of the “exhaust port” in the constitutional electoral college. It’s the Electoral College where the actual election of an American president takes place. Each state certifies electoral college votes – a number that adds to the number of members the states have in the two houses of Congress, or 535. (Additionally, the District of Columbia receives three voters for electoral college purposes, for a total of 538 .) A candidate must have at least 270 votes to become president.
To achieve that “exhaust”, Trump’s legal team equivalent of X-Wing fighters must overcome the entire “trench” of elections by questioning and rejecting multiple state certifications Joe Biden the 270 threshold or call for those votes for Trump. The Trump team has focused on states like Arizona, Georgia, Michigan, Nevada, and Pennsylvania. If the litigation can raise serious doubts about the authentication or tabulation of ballots, the Trump campaign could compel fighting on the floors of these state legislatures. However, after meeting the president on Friday, Michigan lawmakers dealt a major blow to this potential strategy by saying they knew nothing that would change their state’s certification for Biden.
The voting slot
As soon as legal disputes raise doubts about the validity of the vote, the optional version of the Death Star air shaft will be passed on to individual legislators. This is when things move into uncertain constitutional physics.
Article II of the Constitution states that voters “shall be appointed in such a way as the legislature may direct”. All but a few states have ordered that all of their votes go to the candidate with the greater number of nationwide votes. The question is, what if the legislature decides they can’t say with confidence who won the larger number of votes?
Controversy like this has already arisen, as in 2004 when the Democrats objected to the Ohio vote count due to electoral irregularities. The greatest controversy came in 1876 after a close, heated election between Republican Rutherford Hayes and Democrat Samuel Tilden. Like Biden, Tilden won the referendum and more votes (184 to Hayes 165). The problem was that rampant fraud was alleged in Florida, Louisiana, and South Carolina. (For example, South Carolina reported 101 percent of the voters). The controversy resulted in rival voter groups being sent to Congress. A long struggle resulted in the unlikely election of Hayes as president.
In order for Trump to perform a similar maneuver, he needs the cooperation of Republican lawmakers. He would also face litigation over who should certify voters – a state’s governor or its legislature. In the Bush v. Gore case in 2000, the Supreme Court ordered the effective termination of further litigation, but that was only one state. It is possible for such multiple state litigation to postpone challenges past the December 8th safe harbor certification deadline or after December 23rd if those votes are to be presented in Congress. Indeed, there could be a battle on January 6th when Congress meets for a joint session to count the votes.
The election reactor
Only then would the action make it into the “nuclear reactor” equivalent of our constitutional system – the joint session of Congress. This would trigger a law that was passed after the Hayes Tilden election. Unfortunately, the Electoral Count Act (ECA) of 1887 is hardly a model of clarity and would itself become the subject of litigation. Under certain circumstances, Vice President Pence could issue a decision in Trump’s favor, but a Senator and a House of Representatives could appeal his decision.
What if there weren’t enough votes overall to elect a president? Here we could see a rare judicial intervention in a controversial election in Congress. The ECA is not sure what it means to have a majority of the electorate. It is not clearly stated whether a majority of “nominated voters” means a majority of 538 voters (270) or simply a majority of accepted or successfully certified voters (election with fewer than 270 votes). There are also untested terms and conditions, ranging from the weight of the governors’ decision to the importance of what is “lawfully certified” or whether votes have been cast “regularly”.
After the 12th amendment, there is also the potential for a “conditional vote” if there is a tie or insufficient votes. In such a case, Trump could win again. In this case, the vote for the President in the House of Representatives will be held on the basis of government delegations rather than individual members. Republicans are likely to control the majority of state delegations in the House of Representatives, although they have fewer seats overall – as does the Senate, which Pence could be re-elected into.
That’s all a pretty long shot, too – a bit more than Luke Skywalker’s boasting that he could sink it for “beating rats in my T-16 at home”. It is enough to make an Ewok cry. All you can say to paraphrase Han Solo’s farewell words before heading to the Death Star is, “Hey, Rudy. May the Force – and the ECA – be with you. “
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.