Recently, a federal grand jury in the District of Columbia returned an indictment charging the Orange Menance with crimes related to his attempted coup after the 2020 election. It is expected that within a week or two a state grand jury in Fulton County, Georgia will add state charges related to the efforts of dictator-wannabe Donald Trump to convince Georgia election authorities to alter the results of the election in that state.
Much of the crimes committed by Donald Trump and his band of incompetent coconspirators were based on a flawed version of the independent state legislature theory and a misunderstanding of election mechanics.
First, the independent state legislature theory. The independent state legislature theory is based on two clauses in the U.S. Constitution. One of the clauses is found in Article I and applies to the election of members of Congress. The other clauses is found in Article II and deals with the selection of presidential electors.
The two sets of clauses are not exactly the same. First, the two clauses differ in the role assigned to Congress with Article I giving Congress more power to override state law. Second, Article I (and later the Seventeenth Amendment) sets a minimal floor for the role of the popular vote in choosing representatives. There is no such floor for presidential electors.
At least in the first several decades after the framing, some (but a steadily dwindling percent) states opted to have the state legislature choose the electors. It is unclear if an effort by a state to switch its means of choosing electors back to election by the state legislatures would still be constitutional, but that possibility was part of the independent state legislature theory as applied to the 2020 (and possbily 2024) election. But that is not the ultimate approach taken by the corrupt organization that was the Trump campaign.
The theory put forward from October 2020 through January 6, 2021, had several different flavors and strands. For different reasons, each of these theories was flawed and did not support the ultimate crimes committed by President Trump.
Before the election, the main strand concerned the approach taken by election administrators and courts to deal with challenges that COVID posed to in-person voting which resulted in an many states implementing new rules. Under the independent state legislature theory, all of these adjustments were improper because only the state legislature is empowered to enact new election laws.
As a simplistic statement of the law, this theory is accurate. But, it bogs down when applied to the real world of elections. As the U.S. Supreme Court recently reaffirmed, election laws are not simply the statutes expressly dealing with elections and the legislative power is not simply the state legislature. Instead, the election code is part of the entire state system of law and is subject to any state constitutional provisions which may place limits on the legislature. In most states, those constitutional provisions include (either expressly or implicilty) a division of powers between the legislative, executive, and judgicial branches. As it applies to elections, while the level of detail differs from state to state, most state election codes leave many details to the discretion of the executive branch. For example, a typical state election code does not list every precinct in the state or provide for a specific location for each precinct. Instead, the code simply authorizes the local election authority (whether a board or an individual official) the power to choose the number and location of voting precincts. The state code may establish certain minimum standards (e.g., a maximum size for precincts or a minimum number of precincts or that the building must comply have a certain number of parking spaces based on the number of voters in that precinct), but the actual drawing of the precinct boundaries and the choosing of specific buildings to serve as precincts is a decision made by an executive branch official. Now these choices are made by executive branch officials, but those choices must comply with the standards set forth in the state election code, and interested parties can challenge those choices in court if they do not comply with the provisions of state election law including any constitutional provisions which might implicate those election laws.
Aside from the executive branch having the delegated authority over many of the specifics related to elections, courts generally have the power to decide disputes related to elections. That power includes the obligation to determine the facts related to those disputes and to interpret the laws (again including constitutional provisions) governing elections. While the U.S. Supreme Court recently suggested that some interpretations of election laws could be so strained as to invade the legislative power, for the most part, a court decision interpreting the law to resolve a dispute over what the rules are is just what courts are supposed to do rather than “establishing” new election laws without legislative approval.
The second strand began to emerge after the election. In this strand, if there were any question about the validity of the election, the legislatures had the constitutional power to intervene and could replace the electors chosen by the voters with a different slate. While, as noted above, the relevant provisions of the Constitution do, potentially allow the legislature to choose electors, but another provision contains rather significant language which is contrary to this strand. In particular, while Article II, Section 2, Clause 2 gives state legislatures the power to design the manner in which electors are chosen, Article II, Section 2, Clause 4 gives Congress the power to pick the date of the selection of the electors and the power to pick the date on which electors meet to vote. And Congress has chosen the date of the selection of electors — the first Tuesday after the first Monday in November in years divisible by four (a/k/a election day). Because election day is the designated day of selection, it would violate a federal law expressly authorized by the Constitution for a state legislature to decide after the electors had been duly selected in accordance with state and federal law for the state legislature to hold a second selection at a later date and time.
This principle is further embellished by the Electoral Count Act which has a “safe harbor” provision creating a presumption that, if there is any dispute about which electors were properly selected, the presumption is that the electors who were certified according to the state rules and procedures in effect on election day are the proper electors. Now, because state legislatures have the power to set the rules governing the selection of presidential electors, the state legislatures do (at least in theory and subject to any state constitutional provisions) have the ability to direct that they are the final judge of any election contest related to the selection of electors. But, to the best of my knowledge (and in all of the key states), the state legislature had not adopted that rule. Instead, implicitly, election disputes related to the winning slate of electors was subject to the same rules governing all other election disputes — namely an administrative process by which the state election authorities would certify the winner with the losing party having the ability to file an election contest to challenge that determination.
And that is where the Trump crossed the line between legitimate advocacy to challenge the result of an election into criminal conduct: 1) creating false certifications in states in which the courts had rejected his election contests; 2) trying to pressure Vice-president Pence into accepting those false certifications or, at the very least, using those false certifications to grant an unauthorized and unconstitutional power to the state legislatures to review those certifications; and 3) encouraging average citizens to march on the capitol to interfere with the count of the valid electoral votes cast, in the key states, for President Biden.
The issue in Georgia involves the details of Georgia’s election laws. While there may be some unusual twists in Georgia’s law, for the most part, states have similar general rules for elections. In every state, there is a counting process involving election judges (typically required to have bipartisan representation) and either manual or electronic counting of ballots. Usually, the final report from the count breaks down votes by precinct (including potentially early voting center and absentee ballots if counted separately). The report includes not only the total votes but also the total number of ballots and the number of voters who voted that day. While ultimately, it is the total votes in each race that matters, the report of the total number of ballots (both given out and cast) and the number of voters who signed is a key check in the process. In theory, the number of ballots cast should closely match the number of ballots given out which should exactly match the number of voters who signed in. Now, it is possible that some people might show up and sign in (and get a ballot) but then not cast a ballot, but that number is always very small. And, the number of ballots cast should never exceed the number of ballots given out. Now, in some jurisdictions, the setup for ballot counting can potentially result in some ballots not being properly processed or some ballots being run through the machine twice. But if a glith emerges, it is possible at the canvass stage to go back through the ballots and fix that issue.
This then gets us to the canvass stage. While different states have slightly different rules for the canvass stage, the “local” canvass stage typically involves the following: 1) some type of post-election accuracy test on the counting devices to make sure that they are properly operating (with a similar check performed before the election); 2) (in many states) an audit of selected races and selected precincts (in states with paper ballots this sometimes is a hand count) to make sure that the count was accurate (and if not the audit expands to enough other races and precincts to resolve any question about the winner of the races); 3) a check that the ballots cast matches the ballots distributed matches the number of voters who signed in; and 4) the adding of results from each precinct to get the total local results. Now, if the canvass reveals discrepancies which can’t be resolved by local canvassing agency, the local election authority will certify the results after resolving whatever discrepancies can be resolved (e.g., rerunning a precinct if the ballots cast do not match the ballots distributed in the hopes that some ballots were run twice or not run at all) and note the unresolved discrepancies in its report (potentially initiating its own election contest to have a court make a final determination on those discrepancies or to order a new election if needed).
For races that cross multiple local election authorities (e.g., statewide elections), the local canvassing authority are required to report those totals to the state canvassing authority (typically a board including the state’s chief election authority and other officials). But the state canvassing authority has limited powers. In some cases, they can order a statewide recount (or a limited recount by a local election authority if that election authority’s report shows some potential counting issue). But generally, there task is the ministerial task of adding all of the local reports together and certifying the winner based on that total count. The state election authority simply lacks the power to alter the local reports or add or subsract votes from the cumulative statewide total. In Georgia, specifically, the Secretary of State lacked the legal authority to find additional votes for President Trump. Such would have required him to falsely certify the statewide totals (a criminal act). Asking him to find such votes was not a legitimate petition by a citizen to an election official. It was the solicitation of criminal conduct by a government official. And that is likely to be part of the indictment which we are likely to see later this month.
Likewise, as in other states, the Trump campaign persuaded private citizens to show up on the day when electors were due to meet and to sign false documents attesting that they were the duly chosen electors. (In some states, the electors were smart enough to follow the precedent from 1960 when there was still an ongoing election contest in Hawaii and to merely certify that they were the slate of elector candidates pledged to Donald Trump and would be the duly-chosen electors if Donald Trump won his election contest. But, apparently, the folks in Georgia failed to draft certificates containing that potential loophole.) In most states, signing such a document (and later presenting that document for use as if valid) is forgery or some similar crime. And the information currently available suggests that the Trump campaign was involved in coordinating these crimes in multiple states and that Trump was aware of and supported this criminal scheme. So, some charges related to the fake electors is likely to be included in any Georgia indictment.
Obviously, at this point, Donald Trump is facing serious criminal charges (most of which he has given public statements admitting to key elements of) in multiple jurisdictions. But, in only one of these cases does he have a favorable judge and favorable jury pool. It is likely that some, if not all, of these cases will be going to trial sometime after the Iowa Caucuses but before Labor Day. If a jury follows the law and the evidence resembles what is publicly known (and his attorneys fail to find a new legal theory beyond the legal nonsense that they have been spouting over the past several months), the Republican Party is facing the almost certainty that their presumptive nominee will be a convicted felon. And that is going to open a can of worms that the Republican Party will need to address. I know that, in my state, a convicted felon is ineligible to be a candidate. What happens when some voter files a case next August seeking to remove President Trump from the ballot? And, if the courts find that the state law applies to presidential elections, will the state Republican Party nominate a replacement or will they simply leave the ballot line blank?
