The Washington PostDemocracy Dies in Darkness

John Eastman’s Pennsylvania gambit was even weaker than it might seem

Chapman School of Law professor John Eastman testifies on Capitol Hill in Washington on March 16, 2017. (Susan Walsh/AP)
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What Donald Trump and his supporters would like you to think is that the former president’s ploy to retain power was rooted in substantial evidence and rigorous assessments of constitutional law. Neither of those is the case, as new emails obtained by Politico underscore.

Trump’s last-ditch effort to retain power depended heavily on theories proposed by legal scholar John Eastman. In the months since memos from Eastman emerged advocating for Vice President Mike Pence to essentially declare Trump the winner during the joint session of Congress on Jan. 6, 2021, Eastman has defended his efforts as being rooted in an unusual but valid interpretation of legal boundaries. The emails, obtained from the University of Colorado at Boulder, where Eastman worked at the time, reveal his willingness to simply invent rationales for Trump to be given electors from Pennsylvania, a state the incumbent president lost.

To not only invent rationales, but to invent rationales that are themselves indefensible.

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The emails primarily involve communication between Eastman and Pennsylvania state Rep. Russ Diamond (R). Diamond contacts Eastman to explain that he had seen the lawyer’s testimony before a Georgia legislative body. Diamond was constructing a resolution centered on the idea Eastman had proposed: that state legislatures could simply exert authority over the appointment of electors if they chose to do so. Eastman concurred and offered to provide further assistance.

So Diamond passed along a draft of the resolution. In a barrage of “whereas”es, it made broad claims about the extent to which Pennsylvania’s vote had been tainted by purported uncertainty. There was no concrete claim about fraudulent ballots, just various assertions about the courts being unacceptably lenient.

For example, the draft included these two statements:

“WHEREAS, on September 17, 2020, less than seven weeks before the November 3, 2020 election, the Supreme Court of the Commonwealth of Pennsylvania unlawfully and unilaterally extended the deadline for mail-in ballots to be received, mandated that ballots mailed without a postmark would be presumed to be received timely, and could be accepted without a verified voter signature; and
“WHEREAS, on October 23, 2020, less than two weeks before the November 3, 2020 election and upon a petition from the Secretary of the Commonwealth, the Supreme Court of the Commonwealth of Pennsylvania ruled that county Boards of Election need not authenticate signatures for mail-in ballots, thereby treating in-person and mail-in voters dissimilarly and eliminating a critical safeguard against potential election crime”

This is a complaint about process, not illegality. The state Supreme Court allowed mail-in ballots to be returned after Nov. 3 and ruled that signature-matching not occur, changes that meant more mail-in ballots would be tallied. The implication was that this tainted the election, though no evidence of improper voting was offered. (In fact, the chief justice of the Supreme Court, considering another case, stated affirmatively that even if votes were cast using constitutionally dubious methods, those votes should still stand.)

The play here is obvious. When Diamond was writing on Dec. 4, it was clear that Joe Biden had benefited more from mail-in voting: Trump beat Biden by 1.3 million in-person votes but Biden beat Trump by 1.4 million mail-in ballots.

If one could somehow target mail-in ballots as suspect or unacceptable, then it disproportionately harms Biden.

Eastman offered specific line-edits to Diamond’s resolution. Then, recognizing that the complaint as written wouldn’t offer any rationale for appointing a new slate of electors in support of Trump, he proposed some fancy mathematical machinations for inclusion.

“I did not watch the hearings that were held,” Eastman wrote, referring to a legislative hearing on purported irregularities in the state, “but I suspect they contained ample evidence of sufficient anomalies and illegal votes to have turned the election from Trump to Biden." If so, he said, there should be a section added to the resolution to make the case that Trump was the real winner anyway.

“For example, depending on how many ballots were counted that were received after the statutory deadline (say 10,000 for example’s purpose), those 10,000 votes need to be discarded, and you can take the absentee ballot ratio for each candidate in the counties” where “late-received ballots were illegally counted and deduct the pro-rated amount from each candidate’s total,” he wrote. “For the signature verification violation (and perhaps the banning of observers), you could take the difference between the 4% historical rejection rate and the .34% rejection rate done under the illegal procedures, and similarly discount each candidates’ totals by a prorated amount based on the absentee percentage those candidates otherwise received.”

It’s useful to be explicit about the path here. Eastman is supporting an effort by the Pennsylvania legislature to seize control over the appointment of electors, using as a rationale the idea that Trump probably would have won had the court not taken such a generous approach to allowing votes to count. Simply do some fancy math — remove 10,000 ballots received after Nov. 3 and reduce the number of ballots approved for inclusion — and you get justification.

“[H]aving done that math, you’d be left with a significant Trump lead that would bolster the argument for the Legislature adopting a slate of Trump electors,” he wrote, “perfectly within your authority to do anyway, but now bolstered by the untainted popular vote.”

That word “untainted” stings the eyes. The suggestion is that the Supreme Court’s decisions “tainted” what was allowed, not that fraud occurred.

But it also hinges on the idea that Eastman’s pulled-out-of-a-hat rejiggering of the vote totals would show a “significant Trump lead.” In fact, it doesn’t.

Let’s start with that ridiculous idea that one should simply throw out more than 3 percent of mail-in ballots because the rate of rejection — that is, the number of submitted ballots that were deemed unacceptable — had dropped relative to past elections. Before the election, recognizing that the pandemic would spur more mail-in voting, states made broad efforts to ensure that rejection rates were low, launching educational campaigns about ensuring ballots were completed and submitted accurately. Advocates bolstered this message. In other words, one reason that a lower percentage of ballots was removed is that people were better informed about how to properly complete the ballots.

If we set that explanation aside and simply grant Eastman his math, it doesn’t matter anyway. Rejecting an additional 3.66 percent of mail-in ballots relative to each candidate’s total in every county means that Biden loses about 73,000 votes from his total. That’s about 7,000 votes fewer than his 80,000-vote margin in the state.

But then Trump also loses votes: nearly 22,000. So Biden’s back up to a nearly 30,000-vote lead.

Eastman’s other plan — to reject those 10,000 ballots received after the deadline — suffers from a more severe problem: The votes weren’t included in the certified results anyway. But let’s just humor the good attorney and, for no reason besides elevating the subtext here, we just take those 10,000 votes away from Biden.

The result? Biden wins Pennsylvania.

Congratulations to Eastman and Diamond for showing that the “untainted” results in the state also gave the win to Biden.

When Eastman proposed his mathematical adjustments, Diamond responded with some gentle criticism of the Trump team’s efforts at the hearing Eastman referenced.

“Honestly, the Trump legal team was not exactly stellar at PA’s hearing,” he wrote, they “failed to provide the affidavits of their witnesses, and made a glaring error by purporting that more ballots had been returned than mailed out.”

This might have been a red flag but appeared not to be to Diamond. Nor did it serve as a point of caution. Later in December, his efforts to validate an authorized alternate slate of Trump electors having fallen short, Diamond released a statement claiming that more ballots had been counted than were recorded in the state’s system.

This, too, was a glaring error.