George Thomas is the Wohlford Professor of American Political Institutions and Director of the Salvatori Center at Claremont McKenna College. Professor Thomas is a regular contributor to The Constitutionalist.
John Eastman was the architect of former President Trump’s plan to get his Vice President to declare him the winner of the 2020 election. The scheme turned on Eastman’s insistence that in seven states there were “dual slates of electors.” But that’s a lie. There were no competing slates of electors in these seven states or in any others. All of the states certified their electoral votes by December 8 and the Electoral College cast those votes on December 14, making clear that Joe Biden defeated President Trump by 306 to 232 electoral votes. Yet Eastman argued that when Congress met on January 6 to count the Electoral College votes, Vice President Pence could discard the certified electoral votes of seven states.
All Pence had to do was act and Trump would remain president. And Eastman argued for Pence’s constitutional authority to act in a six-page memo. Indeed, Eastman’s memo practically screams at Pence to act. You can almost see the spittle coming from Eastman’s mouth as he works himself into a frenzy and channels Trump: “this election was Stolen.” Yet now, the Claremont Institute, the think tank where Eastman is a fellow after ignominiously stepping down as a law professor at Chapman University, is walking back his argument. In a public statement, the institute said Eastman was only offering Pence “legal advice.” Right.
Read the memo.
Eastman begins by arguing that actions in seven states were “illegal” despite the fact that the states certified their electoral votes. He then claims, because these actions were “illegal” in his analysis, that “There are thus dual slates of electors from 7 states.” These supposedly illegal actions were challenged in state and federal courts. A jurist appointed by President Trump, Judge Stephanos Bibas, captured all of this perfectly in a case dismissing Trump’s claims against Pennsylvania: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.” But even if you think Judge Bibas and scores of other jurists were wrong, as Eastman does, no state had submitted a “dual slate of electors.”
This is key. It’s Eastman’s Big Lie. And this Big Lie is the predicate for allowing Vice President Pence to resolve disputed electoral ballots in favor of President Trump. The insistence on dual slates of electors is what gives the Vice President the constitutional authority under the 12th Amendment to set these state certified electoral votes aside. As Eastman argues, there’s “solid legal authority” and “historical precedent” that the Vice President not only counts the votes but resolves any disputed electoral votes. What’s more, Eastman insists, “all the members of Congress can do is watch.”
Break this down. There are no “disputed electoral votes.” None. Eastman has made this up out of whole cloth. And continues to do so. Nor is there legal authority or historical precedent that gives the Vice President the power to resolve disputed electoral votes. But we only get to this question if there are disputed electoral votes. So let me say it again: There are not! Yet Eastman leaps ahead and gives the Vice President the constitutional authority to make the decision no matter what members of Congress happen to think.
And the memo goes on in this vein. In fact, parts of the memo read like an effort to manufacture disputes about the electoral votes, which would give Pence a pretext for setting aside state certified electoral votes that went for Biden.
Here’s Eastman, for instance, on the constitutional process for opening and counting the electoral votes: “VP Pence opens the ballots, determines on his own which is valid, asserting . . . the authority to make that determination under the 12th Amendment.” But the 12th Amendment gives no such authority: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The certification is done by the states, who then seal the certification and transmit their electoral college votes to the seat of government under the care of the President of the Senate (the VP). The Vice President then opens the certificates and the electoral votes are counted. The Constitution grants no independent authority to determine the legitimacy of the electoral votes to the VP.
Yet Eastman, premised on the lie that there are alternative slates of electors, outlines various scenarios where Pence’s authority effectively determines the election. Pence can discard electoral votes and Trump wins the presidency. Or Pence can say there is not enough evidence to decide between competing electoral slates and the election is thrown into the House of Representatives (where Eastman has Trump winning because there are 26 Republican House delegations, giving him the necessary votes as each state delegation in the House gets a single vote).
But if Pence, in Trump’s words, acts like a “pussy” rather than a “patriot” and just counts the certified electoral votes, Biden wins. Eastman’s memo channels this sentiment; it is the textual embodiment of Trump’s vulgarity, pushing, pleading, bullying Pence to call the election for Trump.
This is more than bad legal advice; it is just what it has been called: a blueprint to undermine a lawful election and unlawfully and unconstitutionally keep a sitting president in power. The memo makes that clear: “The main thing here is that VP Pence should exercise his 12th Amendment authority without asking for permission.” And again: “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.”
But don’t take my word for it, or Eastman’s, watch him on January 6 “demanding” that Vice President Pence act on his constitutional “authority” and halt the counting of the state certified electoral votes. The mob that descended on the Capitol looking to hang Vice President Pence was urged on by Eastman’s Big Lie.
Yet Eastman’s memo is right about one thing: the future of constitutional self-government in America is under threat. And Eastman is among the insurrectionists.
Federal law (the “safe harbor” provision in section 5 of title 3 of the United States Code) specifies that a state’s “final determination” of its presidential election returns is “conclusive”(if done in a timely manner and in accordance with laws that existed prior to Election Day).
“A state legislature’s post-Election Day substitution of its own preferences for those of voters would violate federal law. Even if circumstances delay the final determination of the results of a state’s election beyond Election Day, a state legislature may not usurp the electoral process under the pretext of declaring a failed election. Absent a true election failure—something the country has not experienced in modern history—federal law requires states to appoint electors on Election Day. A state legislature’s attempt to override the will of voters would also violate fundamental democratic norms, jeopardize the state’s entitlement to ensure that Congress defers to its chosen slate of electors, and raise significant constitutional concerns.”
https://static1.squarespace.com/static/5e70e52c7c72720ed714313f/t/5f625c790cef066e940ea42d/1600281722253/State_Legislature_Paper.pdf
The 12th Amendment, ratified in 1804, codified that Congress would do the counting of electoral votes, and the vice president would simply preside over the process.
The 117th Congress, on its first day in operation, Jan. 3, adopted the provisions of the Electoral Count Act as its rule for counting electoral votes.
“If Pence were to disregard the rules and the history and seize control of the counting process, House Speaker Nancy Pelosi would presumably have suspended the joint session, which relies on the consent of both chambers of Congress. “With a stalled and incomplete count because of a standoff between Pence and Pelosi,” the legal scholar Ned Foley writes in a separate Election Law Blog post, “the Twentieth Amendment becomes the relevant constitutional provision.” Meaning, in short, that at noon on Jan. 20, Pelosi would become acting president of the United States. Pence would lose authority as vice president (and president of the Senate) and the joint session would resume, with Congress putting its stamp of approval on Biden’s victory.”
https://www.nytimes.com/2021/09/24/opinion/jan-6-eastman-memo.html
Now we need to support professional election officials and candidates and lawmakers who support voting rights and respect election results, and guarantee the presidency to the candidate who wins the most popular votes in the country, by making every vote in every state matter and count equally, by supporting the National Popular Vote bill and state legislators in states with the 75 more electoral votes needed to enact it.
Trump to skip 2024 campaign and go straight to claiming he won – Borowitz Report, 10/12/21
GOP leaders call for 50-state audit of presidential election! – 10/6/21
Trump and his enablers are trying to undermine the election process, and normalize unnecessary reviews of future ones.
Most Americans think it is wrong that the candidate with the most national popular votes can lose.
Unfair election systems lead to politicians and their enablers who appreciate unfairness, which leads to more unfairness.
The sheer magnitude of the national popular vote number, compared to individual state vote totals, is much more robust against “pure insanity,” deception, and manipulation.
If as few as 11,000 voters in Arizona (11 electors), 12,000 in Georgia (16), and 22,000 in Wisconsin (10) had not voted for Biden, or partisan officials did not certify the actual counts — Trump would have won despite Biden’s nationwide lead of more than 7 million.
The Electoral College would have tied 269-269.
Congress, with only 1 vote per state, would have decided the election, regardless of the popular vote in any state or throughout the country.
It’s because of current state-by-state statewide winner-take-all laws for Electoral College votes, not mentioned, much less endorsed, in the Constitution.
In 2016, Trump became President even though Clinton won the national popular vote by 2,868,686 votes.
Trump won the Presidency because he won Michigan by 11,000 votes, Wisconsin by 23,000 votes, and Pennsylvania by 44,000 votes.
Each of these 78,000 votes was 36 times more important than Clinton’s nationwide lead of 2,868,686 votes.
537 popular votes won Florida and the White House for Bush in 2000, despite Gore’s lead of 537,179 (1,000 times more) popular votes nationwide.
The National Popular Vote bill is states with 270+ electoral votes agreeing to award their electoral votes to the winner of the most national popular votes.
All votes would be valued equally in presidential elections, no matter where voters live.
Before states began enacting new voter suppression laws, the system with 2020 election laws meant that the winning 2024 candidate “may need a national popular vote win of 5 percentage points or more in order to squeak out an electoral college victory. Only once has the margin of popular vote victory been that large since Bill Clinton’s re-election,” Jacob Long
“If Republicans are building the infrastructure to subvert an election — to make it possible to overturn results or keep Democrats from claiming electoral votes — then we have to expect that given a chance, they’ll use it.” – Jamelle Bouie
When presidential candidates, who more Americans vote for, lose the Electoral College, the situation is unsustainable. This is how a government loses its legitimacy.
NationalPopularVote.com
brennancenter.org/our-work/analysis-opinion/lawmakers-are-targeting-courts-could-shoot-down-voter-suppression-laws
Before states began enacting new voter suppression laws, the system with 2020 election laws meant that the winning 2024 candidate “may need a national popular vote win of 5 percentage points or more in order to squeak out an electoral college victory. Only once has the margin of popular vote victory been that large since Bill Clinton’s re-election,” Jacob Long