That trophy went to Sidney Powell, who articulated a wide-ranging theory of “communist money” from Venezuela and China being used to develop a computer system, the algorithm for which would arbitrarily change votes until it somehow broke under the weight of Trump’s massive popularity. Even just the last part of that makes no sense from a technical standpoint, but rest assured that Powell (who also serves as defense attorney for former national security adviser and QAnon adherent Michael Flynn) also managed to loop in George Soros.
At multiple points, the attorneys tried to guilt the media into covering the claims seriously, even while explicitly withholding the evidence they claimed proved their points. That evidence would be reserved for the courtroom, Giuliani said, saying that he didn’t want his purported witnesses to face media scrutiny. This is the same rationale he used for passing allegations about Biden’s son, Hunter, to the New York Post: that the media would vet claims before passing them on to the public.
And that, of course, was the point of the news conference. The goal was to dump a vast array of hollow, debunked or simply wild claims into the public conversation, to aid Trump’s effort to cast the results of the 2020 election as suspect. The news conference was in service to Trump’s goal of doing to the election results what Powell says happened to that unfortunate Venezuelan algorithm: to break it by overloading it. Trump came into the election claiming he would lose only if fraud occurred. Since the election, he’s been doing everything in his power to make people think that actually happened.
There is absolutely no evidence that it did. None. There are questions about small numbers of votes at the margins, as there always are. But no evidence at all that the results are suspect. Biden was the choice of millions more voters nationally and of just enough voters in a number of states to earn more than 300 electoral votes. Trump lost the election.
But Trump refuses to accept that. So, just as sloppily and incredibly as his legal team tried to argue for the existence of girlfriend-who-lives-in-Canada-style evidence of fraud, the president and his team are sloppily and incredibly trying to simply break the process of confirming Biden’s victory.
On Tuesday night, two Republican officials in Wayne County, Mich., briefly refused to certify the results of the election in that county. Trump lost Michigan by a wide margin, but if you could toss out the votes from the county that includes Detroit, he’d win. So they tried it — until public pressure and an agreement to audit the vote prompted a second, unanimous vote to certify the results.
Trump wasn’t done. Trump called one of the officials after the vote. A few hours later, both Republicans from the Wayne County Board of Canvassers filed affidavits seeking to claw back their certification votes.
In that case, it was too late to matter. But it’s not too late for the state to decline to certify the results of the vote or, more dramatically, for the state legislature to try to certify a slate of electors (that is, delegates to the electoral college) who would vote for Trump instead of Biden. Almost certainly not coincidentally, Trump invited senior Republican legislators from the state to the White House. They plan to attend.
All of this is completely obvious and ham-handed. The claims being made by Trump and his team about the threat to the election are superficial and almost universally ridiculous. While states have reported isolated incidents of suspicious voting, the number of affected votes numbers in the dozens across the country. There is no demonstrated reason to think that anything should happen other than that the states should certify their results, certify their electoral college electors and get on with making Biden the next president.
But just because all of this is an anti-democratic effort to wrench the election away from the candidate selected by American voters, and just because it’s ludicrous and clumsy, doesn’t mean it can’t work.
That doesn’t mean it will. In fact, it’s extremely unlikely, as Professor Edward B. Foley, director of the election law program at Ohio State University and a contributing columnist for The Washington Post, explained in a phone call Thursday morning. It theoretically could. Or perhaps the republic will be saved by Sen. Mitt Romney (R-Utah). But we’ll come back to that.
There are a few steps that generally occur before any president is inaugurated, steps that are generally pro forma. States certify their votes. The electors for the winning candidate meet in each state on Dec. 14 to cast their formal ballots. Those ballots are transmitted to Washington. On Jan. 6, the House and Senate meet to count the votes. The person with the most votes becomes president at noon two weeks later.
What Trump’s team is trying to do is derail the process at whatever points it can. For example, the Constitution stipulates that the electors be appointed “in such Manner as the [state] Legislature thereof may direct,” leading some to argue that state legislatures could decide to appoint slates of electors that aren’t reflective of the popular vote or in the event that the popular vote “failed,” in Foley’s wording. That’s where the Giuliani-Powell news conference comes in: If Michigan’s legislators decide that the claims made by Trump’s team give them enough cover to reject the popular vote results, they could decide to give the state’s electors to Trump.
“The legislature doesn’t have to be legally correct in attempting this assertion of authority,” Foley said. “It simply has to submit its paper to Congress.”
If Michigan’s Republican legislature (or any state’s legislature, for that matter) were to decide to do so, Congress would have to consider those votes during that joint session on Jan. 6, since the Electoral Count Act of 1887 mandates it consider any “papers purporting to be certificates of the electoral votes.”
But this works both ways. If the vote in Michigan (or, again, any state) isn’t certified by Dec. 14, the date by which such disputes need to be resolved, electors representing the candidates can meet anyway. In Michigan, for example, Biden’s electors could meet and file their votes for transmission to Congress. Those votes would have a likely additional validation: Gov. Gretchen Whitmer (D) would likely certify the votes as valid.
That matters because the Electoral Count Act also mandates that any dispute over slates of electors from a state be resolved in favor of a slate signed by the state executive, which in most states is the governor. In an interesting wrinkle, Foley pointed out that the state executive in Arizona may be the secretary of state, due to an oddity in the state’s laws — meaning that a slate of electors signed by the Democratic secretary of state would arguably take precedence over a slate signed by the Republican governor.
It’s possible, then, that we may see competing slates of electors submitted from multiple states if Trump moves forward with his ploy. Efforts to resolve disputes between them, though, are only necessary if Congress fails to meet one of the other stipulations of the Electoral Count Act: if the House and the Senate can’t agree on which slate to recognize.
That’s where Romney comes in. On Jan. 6, there will be 48 Democratic and 51 Republican senators, with Sen. David Perdue’s (R-Ga.) seat up in the air thanks to the Jan. 5 runoff election in Georgia. (Fellow Georgia Republican Kelly Loeffler’s Senate seat doesn’t expire with the 116th Congress.) There need to be only two Republicans, then, who choose to side with Biden’s claims in any disputed state in order for the Senate to (presumably) join with the Democratic House in affirming the electors identified by a state’s popular vote. Get two Republicans and it’s a 50-to-49 vote.
It would be safe to assume that Romney would be one of those two Republicans. The other, Foley notes, might be one of three other Republicans who have already publicly congratulated Biden on his victory: Susan Collins (R-Maine), Ben Sasse (R-Neb.) or Lisa Murkowski (R-Alaska). Trump may come to regret his disparagements of those four senators over the years.
Or, you know, the Democrats could be joined by one of the other Republican senators who might be a little freaked out at the idea that the results of an election could be undone through extra-democratic machinations. It is not ideal that the fate of the presidency would come down to the good faith of Republican senators, but it nonetheless may.
There are a lot of other ways this could go sideways, Foley pointed out. He theorized, for example, a joint session of Congress being overseen by the president of the Senate — a gentleman named Mike Pence — trying to change the rules midstream and forcing a stalemate with House Speaker Nancy Pelosi (D-Calif.). Foley also pointed out that even successfully adjudicating the election results in concordance with Biden’s obvious electoral college victory wouldn’t mean that no harm had been done. Efforts to wrench electoral votes away from a popular vote winner and attempts to interfere with the certification of results pose their own risks to the system of choosing representatives through elections.
A great deal of damage has already been done. Lawyers for the president of the United States throwing out sloppy, ridiculous and even unhinged rationales for interfering with the will of the voters in a half-dozen states is part of a dangerous ploy that has already cemented doubt about the outcome among Republicans. There’s no reason to think that every election moving forward won’t be similarly marred by attempts to overturn the popular will through some combination of legal chicanery, conspiracy-theory espousal and efforts to game the system.
Trump’s legal team likely thinks it’s being clever in its efforts to secure him a second term. Trump’s allies seem to think they’re mostly humoring him. But Trump’s own intent is clear: steal a victory at whatever cost to the country he leads. And just because the way he’s going about it is obvious and clumsy doesn’t mean it has no chance of success.