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Sometimes I hate being right.
Donald Trump is campaigning in Blue states right now, including California, Colorado, and New York. It has pundits scratching their heads: is it just all about his ego? Is he crazy? Or crazy like a fox?
I’d argue the latter: that this is part of a strategy to legally seize the White House after he’s lost both the popular vote and the Electoral College vote, much like Republican Rutherford B. Hayes did in the election of 1876.
Eight months before the 2020 election, I wrote a largely-ridiculed article for Alternet.org predicting that Trump would lose the election but would then use multiple phony slates of swing-state electors to try to get the Electoral College count thrown to the House of Representatives where, under the 12th Amendment, the Republican majority would crown him president.
I noted that I’d first heard of the plan that month from a Republican insider I knew from my days living and doing my radio/TV program from Washington, DC.
And, as we all now know, that’s pretty much exactly what happened.
Fortunately, Mike Pence and Nancy Pelosi stopped Trump and his merry band of corrupt lawyers and lawmakers (including Mike Johnson, who led the effort in the House) from executing the plan, but not before five civilians and three police officers lay dead because Trump incited a violent attack on the Capitol in his final, desperate attempt to pull it off.
Last Friday, my SiriusXM colleague Michelangelo Signoreli mentioned to me (on his program) that a prominent rightwing hate radio host had claimed Trump is campaigning in Blue states right now so he can help out down-ballot House members in those states. According to that host, it’s all about holding the House so when the time comes for the election to be certified Republicans will be able to deny that still-necessary certification and vote Trump in themselves.
Which is giving me a terrible sense of déjà vu. At the risk of again playing the reluctant role of Cassandra, here are some examples of how Trump and the GOP could try to steal the White House this winter, regardless of how the vote turns out. And how Republicans are today telegraphing this very outcome.
Article II (the Executive Branch), Section I, Clause 2 of the Constitution (and the 12th Amendment, which revises it) gives solely to the legislatures of the states the power to control the electors who will decide the presidential election.
It does not say — and there is no federal law that says — that the people of the states shall vote for their choice of president and then that vote shall be reflected in the states’ electoral votes. It’s entirely up to each state’s legislature (without any input from the governor).
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” is how it appears in Article II of the Constitution.
As Chief Justice Rehnquist wrote in the 2000 Bush v Gore decision when the US Supreme Court overturned the Florida Supreme Court’s order for a recount that would have given the election to Al Gore:
“The individual citizen has no federal constitutional right to vote for electors for the President of the United States… [T]he state legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution.”
Every state’s legislature generally directs all their electors to vote for the candidate who won the majority in the state (Maine and Nebraska are the exception, allowing for split decisions), a system we call “winner takes all,” but, as Rehnquist noted, a state’s legislature (its combined house or assembly and senate) can, by simple majority vote, direct its electors to vote for any candidate they want, even over the objection of their governor.
In the 2000 election, for example, when the Florida Supreme Court ordered a complete recount of the vote for president in that state, Jeb Bush and his Republicans knew that a full, statewide recount would give Al Gore the presidency. (It would have discovered the additional 45,599 votes for Al Gore that Florida Secretary of State Katherine Harris arbitrarily and illegally chose not to count, as The New York Times noted a year later.)
In other words, had the U.S. Supreme Court not intervened to stop the Florida recount, the Republicans in the Florida legislature were fully prepared to hand the entire Florida electoral college vote — and, thus, the White House — to George W. Bush, even if a recount showed that Al Gore actually won the state. It was, after all, their constitutional right, as Rehnquist later noted in Bush v Gore.
As David Barstow and Somini Sengupta wrote for the New York Times on November 28, 2000, just before the Supreme Court intervened:
“The president of Florida’s Senate said today that Gov. Jeb Bush had indicated his willingness to sign special legislation intended to award Florida’s 25 Electoral College votes to his brother Gov. George W. Bush of Texas even as the election results were being contested.”
“But,” some say, “Kamala Harris is the Vice President, so she won’t refuse to accept the Electoral College votes like Trump wanted Pence to do!”
That’s true, but irrelevant.
While the updated Electoral Count Act explicitly redefines the Vice President’s role as purely ceremonial, it does not — and could not without a constitutional amendment —alter the power of individual Republican-controlled swing states to send Trump electors (claiming that the Harris-winning results in their states are the result of voter fraud) to DC.
Regardless of how transparently dishonest such an effort would be, its primary result would be to throw to the Supreme Court the decision over which electors to count.
Multiple Court observers have noted how light the Court’s docket is this fall because, they speculate, Roberts is fully expecting to play a role in the election similar to what five Republicans on the Court did in 2000 when they stopped the Florida recount, handing the White House to George W. Bush.
The Court could then declare the election flawed because of the alleged voter fraud — Republicans across the country, as well as Trump and Vance, are already preparing the ground for this claim — and, citing the 12th Amendment, throw it to the House of Representatives.
Under that scenario, each state’s House delegation has one single vote for president (the Senate is not involved under the 12th Amendment) and right now there are 26 states controlled by Republicans: the 26-24 vote would put Trump and Vance in the White House for the next four years.
That strategy would require one or more individual states to either refuse to certify their vote, delay certifying their vote, or submit multiple slates of electors.
And we’re already hearing from both local elections officials and state legislators’ rumblings that this is exactly what they intend to do.
Another option to produce the same result would be for a majority vote in the House to refuse to certify a Harris win.
Which brings us back to Trump campaigning in Blue states. As Ed Kilgore wrote for The New Yorker:
“As it happens, there are ten highly competitive House races in California and New York, and a Trump appearance nearby could goose GOP turnout and promote party-organizing efforts in ways that could make a difference in those contests.”
This brings us back to the scenario Michelangelo shared with me. The new, 2025-2026 House is sworn in on January 3rd, whereas the presidential vote is certified on January 6th.
If Democrats win the House in November and are sworn in on January 3rd, it’s unlikely that Speaker Hakeem Jeffries would go along with Trump’s scheme on January 6th, and Republicans wouldn’t have the necessary majority in any case.
But if Republicans can hold the House, there’s a good chance that Speaker Mike Johnson would happily hold the vote to declare Harris’ win as “fraudulent.” After all, he’s the guy who corralled fully 147 votes against certifying the 2020 election in the House; his being the ringleader of that effort is the main reason he’s the speaker right now.
There are multiple razor-tight House races in California, Colorado, and New York. Trump and his co-conspirators may well believe that his holding rallies in those states represents the best bet for helping Republicans win those races, thus insuring Johnson is in charge of the House so they can refuse certification and throw the case to themselves via the Supreme Court.
Seizing control of the Senate would be the icing on the cake for this scheme, as it’s also sworn in on January 3rd and also votes to certify the Electoral College vote, but a deadlock is only necessary in one of the two legislative bodies, and if the 12th Amendment is invoked by six Republicans on the Supreme Court because of that deadlock only the House votes for president.
Keep in mind, JD Vance is still refusing to say that Trump lost the 2020 election, most recently stonewalling the question five times in a podcast interview with Lulu Garcia-Navarro of The New York Times last week. Donald Trump is also still asserting that he won, and is already signaling that he intends to declare victory in November regardless of the “official” outcome.
And, unlike in 2020, there are no longer Mitt Romneys, Adam Kinzingers, or Liz Cheneys in Congress who could gum up the works. The GOP is today unified in its assertion that voter fraud handed Joe Biden the 2020 presidency: this is the perfect setup for the scenarios I’m describing, and Republicans know it. They created it, in fact.
The most likely scenario, though, would involve local election officials gumming up the works by slow-walking counts, challenging counts, or outright refusing to certify counts at the state level long enough that several individual state votes can’t be certified by January 6th, very much like in the election of 1876.
That would provide an easy excuse for the six Republicans on the Supreme Court to intervene, invoke the 12th Amendment, and throwing the election to the House, guaranteeing Trump’s victory.
As Jim Rutenberg and Nick Corasaniti recently wrote for The New York Times:
“The Republican Party and its conservative allies are engaged in an unprecedented legal campaign targeting the American voting system. Their wide-ranging and methodical effort is laying the groundwork to contest an election that they argue, falsely, is already being rigged against former President Donald J. Trump. …
“Even if the cases fail, Mr. Trump’s allies are building excuses to dispute the results, while trying to empower thousands of local election officials to disrupt the process. Already, election board members in several states have moved to block certification of primary election tallies, including in a major swing county in Nevada last week.”
The updated Electoral Count Act sets a hard date of December 11th for states to certify the vote, but doesn’t detail any consequences or outcomes if states fail to meet that date. Thus, in the case of conflict, confusion, or multiple lawsuits the case would, again, end up before the six Republicans who control the Supreme Court.
As the Times’ Rutenberg and Corasaniti note:
“For his part, Mr. Whatley, the co-chair of the Republican National Committee, was noncommittal when reporters recently asked him if his party would seek to block certification in any states this fall.
“‘We’re not going to cross any of those bridges right now,’ he said.”
Gee, ya think? They couldn’t be telegraphing their plans any more clearly if they were skywriting them.
I wrapped up my March 2020 article predicting the GOP’s upcoming fake elector strategy by imploring Democrats and the media to ring the alarm before they tried to pull it off:
“Get it into the media and repeat it over and over again: The GOP plans to claim Democratic voter fraud in this election to steal the election for themselves, and they’re already getting people primed for it!”
It’s worth repeating today.
Pass it along.
