It is a depressing fact about this moment, and about our country, that most Republicans do not see all this as disqualifying in a 2024 standard-bearer. But that leaves a question: Will Republicans at least act to make such an outcome less likely to succeed?
A widely respected conservative former federal judge just issued an urgent warning about Trump’s intentions that clarifies the stakes. In a New York Times op-ed, J. Michael Luttig makes the “conservative case” for reforming the Electoral Count Act of 1887, or ECA, for the express reason that failing to do so will make it easier for Trump to steal the 2024 election.
This should be a seminal moment in the debate over the ECA. It should also make it harder for Republicans to keep playing the role of apologists about Jan. 6 — and about Trump’s future intentions.
Luttig minces no words, declaring that Trump and his allies pose a “clear and present danger to our democracy.” Luttig says they are preparing to “exploit” the ECA to “seize the presidency in 2024” if Trump or his “anointed candidate is not elected by the American people.”
We know Trump is doing this, because he told us so.
Luttig, a “staunch conservative” and appointee of President George H.W. Bush, notes that Trump recently declared his vice president should have “overturned the election.” In so doing, Luttig rightly points out, Trump signaled he thinks the ECA’s ambiguities provide a way to do just that, and that he’s fully prepared to try it again.
The key nuance here is that the threat next time will not be the vice president abusing her powers to count legitimate electors (though ECA reform should further clarify that the veep has no such powers). Rather, the threat stems from other problems in the ECA.
As Luttig puts it, here’s how ECA reform should address those problems:
Congress should formally give the federal courts, up to and including the Supreme Court, the power to resolve disputes over state electors and to ensure compliance with the established procedures for selecting presidential electors — and require the judiciary’s expeditious resolution of these disputes. Congress should then require itself to count the votes of electors that the federal courts have determined to be properly certified under state law.
Here’s what this means. Luttig aims to address the scenario I’ve reported on: A single governor in a state poised to decide the election sends sham electors for the losing candidate, in defiance of the state’s popular vote, and a GOP-controlled House counts them.
Under the current ECA, those electors would count, even if the Senate refused to count them. That’s because under current law, both chambers must sustain objections to electors for them to be invalidated.
With this reform, if a governor or state legislature appoints fake electors, the courts would declare that only…
Read More: Opinion | A staunch conservative’s urgent warning to the GOP about