I don’t think the Republican plan even requires them to get to a contingent election where the House chooses the president. I think the plan is to steal the Electoral College outright by getting states Trump loses to refuse to certify the results of their election. That’s because the Twelfth Amendment provides that the president is the person who wins the majority of the “whole number of Electors appointed.” That “whole number” is supposed to be 538. But one potential reading of the Amendment is that Trump doesn’t have to win 270 Electoral College votes, he just has to win a majority of however many electors show up. Trump’s goal, I believe, is to decrease the number of electors appointed until he wins.
This reading is untested. Nobody has yet tried to win an election with fewer than a majority of the Electoral College votes by decreasing the overall number of electors appointed after the election. But it’s an argument the Trump team could put forward, and it’s an argument Democratic lawyers and experts are preparing for.
The first step in such a process is to get Republicans in states Trump loses to contest the certification of their own elections. In 2020, Trump and his team illegally tried to get slates of alternate electors submitted in states where Republicans control the state legislatures. They could try that again, but for this scheme to work, they don’t even have to get “fake” electors submitted, they just have to convince Republican state legislatures or Republican governors not to submit their valid slates of electors before statutorily imposed deadlines. All slates of electors are supposed to be certified by December 11. Those electors are then supposed to vote and submit their results by December 25.
What this means is that Republicans just have to delay long enough to pass those deadlines. They don’t have to win, they just have to stall.
There are currently 27 states with Republican state legislatures, including Arizona, Florida, Georgia, North Carolina, and Wisconsin. There are currently 26 Republican governors running states like Florida, Georgia, Nevada, and Virginia. If some of these people are able to delay certification past the deadline, the “whole number of Electors appointed” would be diminished, lowering the number of electors Trump would need to hold a majority.
In 2022 Congress passed the Electoral Count Reform Act. This is the only thing our government actually did to address the failed coup attempt launched by Trump after the 2020 election. Its most important provisions essentially provide a legal fast track for election-certification challenges, essentially providing a way to take these disputes out partisan legislatures and meandering state courts, and put them in front of federal judges.
That might sound comforting, but it shouldn’t. Putting any of these challenges in front of federal judges sets them on a collision course with the Republican-controlled Supreme Court. As John Roberts and his cabal of anti-democratic goons (and their wives) have repeatedly shown this year, the Supreme Court is willing to do Trump’s dirty work. In 2020, the Supreme Court rejected almost all of Trump’s various nonsensical claims to overturn that election. But I wouldn’t be so sure they’ll do so again, especially because this time the Trump people will not necessarily be asking the court to overturn the results of a state’s election, they’ll just be asking them to delay certification of those results, until some later date. In addition to ruling for the Trumpers outright, the court could simply delay hearing the case for as long as the delay is helpful for Trump. The Supreme Court can put its thumb on the scale for Trump simply by pretending to “stay out of it” and allowing the “process” to play itself out.
If enough states refuse to certify the results of the election and submit a slate of electors—with the Supreme Court’s blessing—the math is not actually hard for Trump. Let’s say Vice President Kamala Harris wins the bare majority of electoral college votes necessary, 270, but the Republican legislature in Wisconsin refuses to submit the state’s 10 electors by the deadline. In this scenario, the new total number of electors becomes 528, not 538—and Trump needs only 264 electoral votes to “win.” If you take Wisconsin and Nevada’s six electors out of the mix, Trump needs only 262 electoral votes to “win.” He’ll likely achieve those numbers without having to win one of the “blue wall” states.
It’s possible to play with the numbers until you find a “tie” scenario at which point the contingent election goes to the House of Representatives, but the far more likely situation is that Trump decreases the overall number of electoral votes available until he can claim a majority of the ones remaining.
And this is where Speaker Johnson becomes critical to the whole “secret” plan. In 2020, Nancy Pelosi was Speaker of the House. If states had tried to get cute and not submit their electors by the December 11 deadline, Pelosi would just have extended the deadline. But Speaker Johnson surely won’t. If electors are not submitted by December 11, he’ll likely declare the process “over” and say that the electors appointed by that date are the only ones allowed to vote for president.
Crucially, Johnson can do this even if Republicans lose the House and Johnson is removed from power. The new House isn’t sworn in until January 3. As the violent MAGA people in your family already know, January 6 is when the House certifies the results of the electoral college, but that is just a ceremonial day. By the time we get to January 6, the electors are supposed to have voted. December 11 is the deadline for appointing electors, December 25 is the deadline for voting. Mike Johnson will still be in charge on both of those days.
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You're tailspinning.
