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The “Gap” in the Constitution That Led to January 6th

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The “Gap” in the Constitution That Led to January 6th

Last week, the House select committee investigating January 6th heard extensive testimony about the degree to which then President Donald Trump and his aides pushed state officials to disregard the vote tallies in the 2020 election and empower phony slates of electors. Trump loyalists such as Rudy Giuliani and John Eastman tried to gin up alternate slates in pursuit of a plan that would culminate in then Vice-President Mike Pence declaring Trump the winner of the election. (Seven states that Trump lost—Georgia, Wisconsin, Arizona, Nevada, Pennsylvania, New Mexico, and Michigan—ended up submitting bogus slates.) The pressured state officials’ stories raised questions about whether people in Trump’s orbit violated the law. More broadly, the testimony spotlighted the byzantine nature of America’s Presidential elections, which leaves them open to abuse.

I recently spoke by phone with Ned Foley, a law professor at the Ohio State University and the director of the school’s election-law program, to understand what the committee has revealed about our electoral vulnerabilities and how to shore them up. During our conversation, which has been edited for length and clarity, we discussed the inherent problems with the Electoral College, why the Vice-President’s role in it is so hard to parse, and how the threat of a stolen Presidential election—including the possibly criminal conduct during the last one—may really center on Congress.

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Do you think that election laws were clearly violated in the 2020 Presidential election?

I do think laws were violated. But to say, for example, that various people acted unconstitutionally or contrary to the Electoral Count Act, to say that their conduct was unlawful, doesn’t necessarily mean that they broke a criminal law. From time to time, government officials, whether they’re in the Environmental Protection Agency or the Department of Health and Human Services, get sued, under the Administrative Procedure Act for failing to follow statutory procedures or rules. So I distinguish between a breach of the Electoral Count Act on its own terms and any potential criminal liability.

But my strong view is that the members of Congress who filed their objections to the electoral votes from the various states—I’m talking about people such as Representative Mo Brooks and all the other members of the House who signed on, and then Senator Josh Hawley and Senator Ted Cruz and his group—substantively breached the requirement for what counts as a valid objection under the Electoral Count Act.

An objection has to be signed by at least one member of each chamber, and they obviously complied with that requirement once they got either Senator Hawley or Senator Cruz to join what the House members were doing. But that isn’t all that the Electoral Count Act does. Objections have to be substantively valid as well as procedurally valid. All of the objections that were made were completely inappropriate from a substantive perspective. They were out of bounds under another provision of the Electoral Count Act, codified in Section V of Title III, which says, Congress promises to accept as conclusive—the word “conclusive” is in the text of the law—any “final determination” that gets achieved within judicial procedures and administrative procedures that take place prior to the meeting of the electors themselves. And that had all happened. So it was completely inappropriate to be objecting to Arizona’s electoral votes for Biden, or Pennsylvania’s, or any others’. That was a huge breach of the statute. In that sense, the law was definitely violated.

It seems plausible that our system allows for a conspiracy to subvert the will of the people without it being obvious whether serious criminal laws have been broken. Does that seem accurate to you? And, if so, is that a flaw in our system? Is it attributable to the system’s complexity, with the Electoral College and all these states independently sending electors to the federal government?

Yes, it’s absolutely true that our Presidential-election system in particular has significant vulnerabilities. Some of those vulnerabilities are in the Constitution itself. As long as we retain the constitutional provision for the Electoral College, we won’t be completely out of the woods. State legislatures have the authority to replace a popular vote, to directly appoint the electors for their state. But they can’t do it retroactively. And that gets to what Giuliani and Trump were trying to do.

Congress gets to choose the time for appointing electors. The relevant statute of federal law says electors are appointed on the first Tuesday after the first Monday in November. The legislature picks the manner in which they’re appointed, but Congress sets the date. Once the electors are appointed, the appointment is complete. Congress also picks the date that the electors themselves vote. That was December 14th. It’s always the first Monday after the second Wednesday in December. But the legislature can’t say, around Thanksgiving, “Oh, oops, we don’t like the results of our chosen method of appointment”—namely, a popular vote—“because we wish the outcome had been different. And so we’re going to have a new method of appointment for this particular election.” No, no, no, no—the appointment has already occurred. And a lot of Guliani’s theory was built on this fallacy that somehow the legislature could take back the appointment method. That is not true.

One vulnerability in our system that people have not paid a lot attention to is that Maine and Nebraska use a different method of appointing electors than every other state in the country. They do hold a popular vote, but it’s not fully winner takes all.

It’s divided by districts.

Yes, correct. Perfectly constitutional. But I don’t think it’s a good idea. And I think it would be a really bad idea if Pennsylvania, for example, did this for 2024. To the extent that congressional districts are gerrymandered, it just extrapolates gerrymandering and imposes that upon Presidential elections. But to do that the next time around would be completely legal.

As long as we have an Electoral College under our Constitution, we have a lot of vulnerabilities. If we don’t amend the Electoral Count Act, we’ve got even more vulnerabilities, because that statute is very poorly written. But the most important, unfortunate truth about 2020 was, in essence, Attorney General [William] Barr’s point: it was all nonsense to begin with. Had some of these theories about voter fraud been married to real disputes, such as Florida in 2000 or the 1876 Hayes-vs.-Tilden election, it could have been a genuine contest on January 6th, but [Trump and his allies were] applying these theories to a factual predicate that was nonexistent. None of this should have mattered because Trump should have conceded that November.

I assume you had a critique of the Electoral Count Act before the 2020 election.

Correct.

And I assume you have a critique of the Electoral Count Act now. I’m curious whether those critiques are the same or different, based on what occurred.

We’ve learned stuff having gone through 2020. We have a better understanding of just how vulnerable it really is, but there’s a fair degree of overlap between problems that we saw in advance and problems that we still see. One of the most obvious problems is that it is written in very arcane, convoluted, nineteenth-century verbiage. It is very difficult for a modern reader to parse and follow.

Another critique: I’m glad that Pence refused to do what Trump wanted. I think it would have been wrong for Pence to do that. But anybody who thinks that we know exactly what the Vice-President’s role is and that there’s no controversy around it, that it is unambiguous in terms of reading the Constitution—it isn’t. The Twelfth Amendment says that the electors’ votes get delivered to the Senate president, who is the Vice-President of the United States, and that the vote “shall then be counted.” It’s in the passive voice. There is a lack of clarity on exactly who does the counting, how it is handled, and possible objections.

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The “Gap” in the Constitution That Led to January 6th