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1/6 and the Electoral College

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This is a brilliant piece by Kate Shaw:

John Eastman. Rudy Giuliani. Donald Trump himself.

These people all bear some responsibility for the events of January 6, 2021. But there is another contributing factor—an institution, not a person—whose role is regularly overlooked, and that deserves a focus in the ongoing January 6 committee hearings: the Electoral College. The Electoral College isn’t responsible for President Trump’s efforts to remain in office despite his clear loss. But it was integral to Trump’s strategy, and it has everything to do with how close he came to success.

[…]

And even without Trump’s machinations, the 2020 election came dangerously close to producing yet again a president who did not win the national popular vote. Joe Biden won approximately 7 million more votes than Trump, and prevailed in the Electoral College 306–232, but just 44,000 additional Trump votes in Arizona, Georgia, and Wisconsin could have resulted in a 269–269 tie in the Electoral College. If that had happened, the House, voting by state delegation, would almost certainly have anointed Trump president despite his second popular-vote loss.

But there’s a problem with the Electoral College that’s distinct from the fact that it sometimes selects a winner who does not receive the most votes nationwide, and from the way it creates a political process that overvalues the concerns of voters in an arbitrary subset of states, increasing polarization, dysfunction, and division. (I elaborate on these dynamics in a recent essay in the Michigan Law Review, as does Jesse Wegman in the book that’s the subject of my essay, Let the People Pick the President.) The problem is this: The Electoral College today is dangerously susceptible to manipulation. Indeed, as 2020 showed, the complex process through which a candidate becomes president contains a number of postelection opportunities to contest or undermine the results of an election—and to do so for reasons purportedly having to do with law and legal process.

Consider the Trump campaign’s many lawsuits designed to delay state certification beyond the “safe harbor” deadline created by the Electoral Count Act, after which a state’s slate of electors is no longer deemed conclusive in the event of a dispute. Or Trump supporters’ efforts to disrupt the statutorily required meetings at which each state’s electors actually cast their votes, and the attempts of ersatz “Trump electors” to lay the groundwork for later challenges to official state slates. Trump also personally pressured state election officials to change election results by “finding” enough additional votes that he would be entitled to all of the state’s electoral votes. Trump loyalists in the Department of Justice, and Trump supporters such as Ginni Thomas, sought to push state legislatures to take the radical step of throwing out state returns on the basis of spurious fraud claims and appointing Trump electors themselves. Trump and at least one of his attorneys sought to pressure Vice President Mike Pence to refuse to count electoral votes from a number of states in which Biden received more votes, pointing to the vice president’s central role in “counting” electoral votes in the last stage of the Electoral College process created by the Twelfth Amendment. When that failed, what became the January 6 attack on the Capitol was an effort to disrupt that final event in the Electoral College timeline.

The failure to eliminate the Electoral College with a popular vote on many levels. But not only does it make elections easier to steal by creating a bunch of close state contests that could turn out to be tipping points, as constitutional hardball escalates it makes it very possible to steal a presidential election within the four corners of the Constitution. 2000 was just the beginning; we’re going to see something like was tried in 2020 actually succeed in an election that’s not nearly as close sooner or later.

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