The "Throw it to the House" Trump Hail Mary Still Does Not Work
I do not want to bury the lead here, so I will state up front that Rachel Maddow recently avoided replicating a very common mistake in discussing possible election shenanigans, a mistake that both Democrats and Republicans often make. Her non-error deserves attention and praise. It will take me some time here to lay out what she wrote and why it was such an important moment, but I wanted to put that key point in this first paragraph. As I will explain below, the difference between getting this seemingly obscure point right and wrong could be the difference between the US continuing as a constitutional democracy or becoming a one-party autocracy.
Now for the background. Starting in the Fall of 2020, it became necessary to pay attention to the various weak links in the US presidential election system. Specifically, a Trump campaign advisor admitted openly and on the record to a journalist (Barton Gellman of The Atlantic) that their plan was to sow chaos in the states in a way that would result in Trump remaining President even when he lost the 2020 election. That chaos would have had swing-state Republicans invoking what is now known as the Independent State Legislature Theory (ISL), ignoring their Democratic governors, and appointing Trump electors. Even if that plan failed, however, the Trumpists would be undeterred.
Their fail-safe plan, which Trump himself openly touted, was to get the election thrown into the US House of Representatives under a strange procedure laid out in the Twelfth Amendment. For the benefit of readers who have forgotten the details, I will shortly summarize that procedure and the related Trumpian scheme, but the point was that Trump's people had a plan for what to do after Trump lost the election. Their post-election plotting also included the non-bloody part of the January 6th coup attempt, which would have had the Vice President refuse to accept certain states' electoral votes. Because both Houses must vote to reject certified slates of electors, however, that plan did not add up; but the hope (among people like Ted Cruz and Josh Hawley) was to send the results back to the states for "investigations" that would run some clock and allow Republican state legislatures to change results.
When none of that worked, the bloody part of the coup plot followed.
I emphasized the word "after" in the third paragraph above because those schemes were truly post-election plays that would be designed to undo a bad result after the fact. I will discuss all of those post-election strategies in a column next week, assessing their potential use later this year and in January 2025, but changes happening right now are the focus here.
As a reminder, the old pre-election anti-democracy standbys include voter registration purges, under-staffing Democratic voting places, intimidating voters (especially voters of color and younger voters), and all the rest. After Trump was finally out of the White House in 2021, red-led states beginning with Georgia -- quickly joined by other big electoral prizes like Texas and Florida -- amped up their voter suppression efforts. In Florida, Governor Ron DeSantis used the 2022 midterms to road test his ability to suppress the vote. Most perniciously, he created "voter integrity" police to arrest and perp-walk Black voters after state election officials had tricked them into believing that they were eligible to vote. Those criminal charges were quietly dropped later, but the point was to keep up the very public effort to scare Those People away from voting in the first place.
There is, however, a new strategy that Maddow has been investigating for quite some time, and she has been ringing the alarm bell. She has reported that Trumpists have taken positions on state and local election boards around the country -- positions that are supposed to be nonpartisan and purely ministerial -- and they plan simply to refuse outright to certify election results. It might be most accurate to call this "a pre-election strategy that will be a key part of a post-election strategy," but in any event, it involves actions that Republicans have been taking for the last few years in anticipation of the 2024 election. Democracy Docket's podcast examined this strategy earlier this week, explaining how national and state-level Democrats are trying to block this new Republican plot through legal actions before the election.
What makes the no-certification strategy interesting is that it does not require refusing to count or certify only Democratic wins. The idea is that the board of a tiny county in rural Georgia could count its votes, find that Trump beat Harris with total vote counts of something like 8500 to 3500, but nonetheless invoke "concerns" and refuse to certify those results in time for the deadlines required by law. Why do that? Because doing so would supposedly prevent the entire state's election results from being certified. I suspect that there are state-by-state differences regarding whether statewide results can be certified if the uncertified counties could not possibly change the outcome, but I have not had the opportunity to do that spadework at this point. For now, let us assume (as Maddow does) that one county's rogue board could prevent the entire state's outcome from being certified.
Maddow recently wrote an op-ed in The New York Times, describing how this is supposed to work for Trumpists. She laid out a scenario in which some swing states go for Harris while others go for Trump, but Georgia's results are being stonewalled. In her story, Harris has 257 electoral votes to Trump's 265. Whoever wins Georgia wins the presidency, with either 273 (Harris) or 281 (Trump) total electoral votes.
The story that the Trumpists have been telling since Fall 2020 is that they do not need to be ahead in the electoral vote count from the certified states in order to win. If it were (flipping Maddow's hypo) Harris with 265 and Trump with 257, freezing Georgia's results would supposedly still be good for Trump. Why? Because if Harris is below the 270-to-win majority of all 538 possible electoral votes, the Trump people claim that the election must be thrown to the US House under the Twelfth Amendment. There, the procedure would not be one-district-one-vote (which would make the 2024 fight for the House majority even more consequential) but one-state-one-vote. Yes, that Amendment does indeed require that Wyoming and California get one vote each. Because it is highly unlikely that Democrats could take enough House seats this Fall to end up with majorities of the House caucuses in 26 states, Trump would presumably win. (Democrats are currently sitting at 22.)
But here is the key point. Maddow writes this about her scenario in which Trump has the majority of not-including-Georgia votes: "Republicans would win with 265 electoral votes, to the Democrats’ 257." Why is that so important? Because she does not make the mistake to which I referred above, which is the idea that any total below 270 would mean that the Electoral College would become irrelevant and that the least democratic possible voting system in the House would then determine who wins. Maddow indirectly gets the Twelfth Amendment right, and she even does so without fanfare or even seeming to make an argument. She is right not to turn it into an argument, because the Constitution is absolutely clear. There is no argument.
But why is that a big deal? I do not have the stomach to dive into the comments on Maddow's op-ed, but I would bet anything that huge numbers of people called her an idiot for not knowing how the Twelfth Amendment works. But she is right, and it matters precisely because it could be Harris who has the most non-blockaded electoral votes and would thus be the winner.
When this all came up in 2020, I co-authored a Verdict column with Professors Michael Dorf and Laurence Tribe: "No, Republicans Cannot Throw the Presidential Election into the House so that Trump Wins." I also wrote a sole-authored complementary piece here on Dorf on Law: "Trump's 'Have the House Decide the Election' Strategy Is Unconstitutional (and Absurd)." There, we/I highlighted the relevant clause from the Twelfth Amendment: "The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed" (emphasis added).
In Maddow's hypothetical, Georgia's electors would not have been appointed, so the winner would be whoever has the majority of the 522 appointed electors, moving the threshold down to 262. And she makes that larger point clearly and explicitly: "If, at the end of this process, one or more states still do not produce results, the number of electoral votes required to win a majority — and therefore the presidency — would be reduced accordingly."
Why award a gold star to someone for simply agreeing with the unambiguous meaning of the Twelfth Amendment? As I noted above, this is not a mistake that only Republicans make. I have heard Maddow's colleague Chris Hayes get it wrong. Even Jamie Raskin, a leading Democratic Member of Congress who is in no way squishy (not that Hayes is), has gotten this wrong on the air. And in those two and all other instances in which people make that mistake, they talk as if they are saying something that is matter-of-fact and not even worth questioning.
But this is in fact of the highest import. There are all kinds of scenarios that could have one or more states failing (or refusing) to certify their elections on time, leading to a failure to appoint electors. In many of those scenarios, Harris would be the winner under the correct reading of the Twelfth Amendment, but Trump would win under the incorrect reading.
That is not to say, of course, that the correct reading of the Twelfth would always result in Harris winning. Maddow's hypothetical itself shows how Trump could still win. Moreover, depending on how well the strategy works for Republicans, they could "hang" as many swing states that Harris had won as would be necessary to overcome even a Harris electoral landslide. Heck, it is theoretically possible that only, say, North Dakota certifies its results on time, resulting in Trump becoming President by an Electoral College vote of 3-0.
It is therefore essential -- in advance of any Trumpian attempts to steal the election -- to be clear about what "technically works" and what is simply wrong. The US could in fact find itself in a world in which the next President is determined by the correct reading of the Twelfth Amendment. I am thus glad that at least one prominent commentator did not fall for the misreading that could wrongly put Donald Trump back in power -- especially because he and his party would never relinquish that power again.