Photo: Joe Raedle/Getty Images
One frightening pre-Halloween occupation for political junkies is speculating about Donald Trump’s exact plans for challenging another election defeat. There is zero doubt he will challenge a loss but much less clarity on how he will go about it thanks to several important changes since 2020: Trump is not in control of the federal government; Trump’s party is decidedly not in control of the vice-presidency, the office that supervises the January 6 joint session of Congress to confirm the winner; and the Electoral Count Act of 2022 pretty much closed off Trump’s favorite election-reversal strategies in 2020, notably the fake-elector and vice-presidential coup gambits.
Politico has a new report out offering the latest and by far the most detailed Trump Electoral Coup scenario, raising some possibilities I hadn’t thought about. You should read the whole thing because it nicely illustrates the many inflection points our system creates between Election Night and Inauguration Day on January 20, 2025 (the two dates about which there is complete certainty). The report also emphasizes two points that have probably been underdiscussed and are worth considering.
First, there’s the fringe constitutional-law argument (advanced as a secondary line of attack by Trump lawyer John Eastman) that the Electoral Count Act of 1887 (which the 2022 legislation amended) is an unconstitutional abridgment of the explicit constitutional powers of state legislators to name presidential electors as they wish. This hasn’t been tested by the U.S. Supreme Court, but if it is and is upheld, the Electoral Count Reform Act scheme of ruling out any electoral vote award not made by the state-designated chief executive officer (usually either the governor or secretary of state) would fall and Republican legislators (where they are in power after the 2024 election) would be newly invited to wreak havoc.
Second, Politico explores in some detail the potentially disruptive role of House Speaker Mike Johnson, a Trump vassal of the highest order and a congressional field commander of the 2020 bid to overturn the results:
If Johnson believes, like Eastman, that the laws governing the joint session are unconstitutional, he could assert unprecedented authority to affect the process — all under the guise of following the Constitution. That could include taking steps to ensure that pro-Trump electors embraced by state legislatures get an up-or-down vote, even if they conflict with slates endorsed by governors. It could include permitting hours of floor time to air theories of voter fraud, while holding the presidency in limbo. It could also include lobbying allies to reject pro-Harris electors in order to prevent either candidate from receiving 270 Electoral College votes. And it could also include simply gaveling the House out of session to prevent the joint session from continuing. Each move would likely trigger intense legal battles, putting the courts — and most likely the Supreme Court — in the position of deciding how to resolve unprecedented power plays by the most prominent actors in government.
The Supreme Court, of course, is dominated by a bloc of hardcore conservatives aligned with and partially appointed by Donald Trump and is likely more inherently partisan than the Court that awarded George W. Bush the presidency in 2001. And if Johnson in any manner manages to blow up an electoral-vote majority for Kamala Harris, the presidency would be determined by Johnson’s very own House, where it’s near-certain that Republicans will control a majority of state delegations and would return power to Trump via the peculiar rules of a “contingent” election (not used in a presidential contest since 1825, when a multicandidate field meant no one had an Electoral College majority).
Scary, eh? So too is this detail from the Politico article:
[T]o a person, election observers, elected leaders, and some of Trump’s own allies agree on one operating premise: On Election Night, no matter what the results show, how many votes remain uncounted, and how many advisers tell him otherwise, Donald Trump will declare himself the winner.
Halloween definitely won’t be the only ghoulish day left on this year’s calendar.
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