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Opinion A GOP lawyer issues a frantic warning to his own party about Trump and 2024

(Kevin Lamarque/Reuters)
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Benjamin Ginsberg, a veteran Republican election lawyer, just issued a stark warning to lawmakers in his own party: If you don’t act now to protect our system, the losing candidate in the 2024 presidential election might seek to overturn the will of the people — and succeed.

We should fear this looming threat, Ginsberg continued, because Donald Trump in 2020 showed us the template for it. As Ginsberg warned: “Republicans should be haunted by the blueprint that he has created.”

But it is precisely because Trump created this blueprint that this warning might go unheeded. Indeed, this affair will provide an illuminating test of the true nature of the ongoing GOP turn away from democracy.

In short, Republicans have a big opportunity to demonstrate that they do not want a rerun of 2020. One hopes they will pass this test. One suspects they will not.

We’re talking about the Electoral Count Act of 1887. Ginsberg’s warning, which he issued in a piece for National Review, is that if we don’t fix glaring ambiguities in the ECA, we’re leaving ourselves profoundly vulnerable to future election subversion.

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Some congressional Democrats are eyeing new reforms to the ECA, the New York Times reports. But as of now, no Republicans appear on board.

As Ginsberg notes, Trump’s attack on the 2020 election was in large part an effort to exploit those very ambiguities. The ECA structures the process by which Congress counts presidential electors, and Ginsberg proposes numerous reforms.

How to reform the ECA

For instance, Congress could address a looming possibility: A GOP House and Senate could refuse to count a Democratic candidate’s electors appointed by a swing state in accordance with the popular vote, invalidating them based on objections over fake fraud.

Or the GOP Congress could count a rogue set of electors appointed by compliant GOP state legislators, rather than counting legitimate electors.

So Congress could raise the threshold for congressional objections to electors to much higher than one member from each chamber. It could clarify what constitutes grounds for such an objection, which is now very vague.

And Congress could clarify the ECA’s “safe harbor” provision to make it absolutely clear that if a state resolves disputes over electors, Congress must count them.

All these might close the hole Trump tried to exploit by getting Republicans to object to Joe Biden’s electors, which 139 House Republicans did end up doing (it wasn’t enough, but a GOP Congress shifts the calculus).

Another possibility: Under a split Congress, a GOP House might vote to count a fake slate of electors and a Democratic Senate might vote to count the real one. Congress could clarify processes for resolving such a conflict.

Congress could also clarify the vice president’s role in presiding over the count of electors. That would preempt scenarios similar to the one Trump pushed in that coup memo, which urged his vice president to corruptly invalidate Biden electors. All these ideas mirror suggestions by the National Task Force on Election Crises.

To be clear, we also need reforms to processes under which states certify electors, so they’re less prone to abuse by rogue legislators: Richard Hasen and Marc Elias have offered ideas.

But ECA reform would plainly help preempt another 2020. Can anything get congressional Republicans to support it?

Reasons for skepticism

Ginsberg warns Republicans that if they don’t fix the ECA, Democrats could exploit it next time, especially with (roll ominous soundtrack here) the terrifying Kamala Harris as vice president.

But the idea that this fear could sway Republicans doesn’t grapple with the antidemocratic currents surging through the GOP. Untold numbers of Republicans appear to want to be able to execute such a scheme next time themselves.

Note that many Republicans loyal to Trump’s 2020 lies are running for state positions of control over election machinery, which could enable a state to send fake electors. Meanwhile, Republicans who worked to invalidate Biden’s electors are not remotely apologetic about it. Republicans who did resist Trump’s corrupt schemes are facing primaries and censure.

So the idea that Republicans would fear being victims of this themselves misses the point. Indeed, if Republicans support ECA reform, that would constitute a public institutional admission that Trump did try to corruptly overturn the 2020 election.

It’s obvious that a good deal of energy in Republican politics right now flows from the idea that efforts to reverse the outcome were in some sense defensible, if not heroic.

To be clear, Republicans should want ECA reform: It would become less likely that they themselves face pressure to subvert a future election, since pathways to this would have been closed off.

But if they don’t, this will demonstrate again that their excuse for pursuing voter suppression everywhere — that they want to protect “election integrity” — is bad-faith nonsense. ECA reform actually would boost “election integrity.”

Once this cause gets associated with those who claim Trump tried to destroy our system and that we must act to protect it — once it gets associated with Enemies of Trump — will 10 Senate Republicans support it?

We’ll see. If not, Democrats must suspend the filibuster to reform the ECA themselves. It’s hard to imagine they’d allow that relic to scuttle safeguards against a future stolen election via a scheme that Trump already attempted, with widespread GOP complicity.

That would make Democrats’ warnings about the Trumpist threat to democracy ring awfully hollow.