Following Election Day, Nov. 3, 2020, President Donald Trump spent 10 weeks engaging in the first attempted coup to steal the presidency in U.S. history. As we know, Trump failed.
If nominated again in 2024, however, another attempt at a Trump presidential coup is far more likely to succeed – unless flawed laws, enacted in 1845 and 1887 and still on the books today, are repaired.
Most of the focus in Congress on avoiding a repeat of Jan. 6, 2021, has been on the need to fix the Electoral Count Act of 1887 (ECA) which establishes the process for Congress to count presidential electoral votes. A bipartisan group of senators is currently working on a package of reforms to repair the ECA.
But it is a gaping loophole in another antiquated law, the Presidential Election Day Act of 1845 (1845 Act), that creates perhaps the most dangerous opportunity for Trump to steal the 2024 presidential election.
Any ECA reform legislation that Congress considers and passes in the coming months must close the huge loophole opened by the 1845 Act.
Trump’s Coup Attempt
The chief architect of Trump’s coup strategy was John Eastman, a lawyer who worked closely with Trump.
The keys to the coup strategy were threefold: Trump’s nonstop false claims of voter fraud; having Vice President Mike Pence stop Congress from certifying Biden on Jan. 6 as president; and engaging pro-Trump state legislatures in key states where Biden won to reject the choice of the voters and help provide the presidential electors needed to elect Trump.
The coup attempt failed for several reasons, including “failures” of each of these three elements:
First, there was never a shred of evidence presented by Trump or anyone else to support the false claims that voter fraud impacted the election. No such evidence has been presented to this day.
Second, Vice President Pence correctly fulfilled his constitutional responsibility. In the face of intense pressure from Trump – and a mob chanting “Hang Pence,” while Trump stood by silently – Pence completed his ministerial role to count the Electoral votes at 3:41 am on Jan. 7.
Third, the effort to get state legislature leaders and members in battleground states to help override the election results never got off the ground. This frantic last-minute effort, after Trump allies lost dozens of cases in the courts, came across as a desperate gimmick.
In 2024, however, Republican national and state officeholders will be better prepared and situated to override the voters in a presidential election, if necessary, to grab the presidency.
The 1845 Act opens the door for a state legislature after a presidential election to reject the choice of their state’s voters, and instead choose the legislature’s own presidential candidate by appointing the presidential electors to represent the state.
The Constitution and the 1845 Act
The Constitution gives state legislatures the power to determine the way in which states choose their presidential electors. Thus, Article II, Section 1, Clause 2 of the Constitution provides that:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress […] (Emphasis added.)
Currently, every state legislature in the country has implemented the “manner” of choosing electors by delegating that choice to the voters on Election Day. While it would be constitutional for a state to revoke that delegation and retake the power to name presidential electors, this is not politically feasible.
In the earliest days of the Republic, state legislatures did choose presidential electors. But, voters choosing their state’s electors has been the practice, with few exceptions, since 1828. Since the Civil War, state legislatures have chosen presidential electors only twice – in Florida (1868) and in Colorado (1876).
Meanwhile, the Constitution gives Congress the power to determine the time of choosing the presidential electors. Article II, Section 1, Clause 4 of the Constitution provides:
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. (Emphasis added.)
Congress exercised this power in the 1845 Act by establishing the “Time” of choosing Electors as “the Tuesday next after the first Monday in the month of November.”
Thus, under the 1845 Act, presidential electors are chosen on that Election Day. (Even if the counting of the votes is not completed on Election Day, the choice of electors in a state is recognized as being made by voters on Election Day.)
The 1845 Act, however, contains a dangerous exception to this rule. The Act says that if a state “shall fail to make a choice” on the designated Election Day, “then the electors may be appointed on a subsequent day in such manner as the State shall by law provide.” (Emphasis added.)
Congress in 1845 included this exception for two narrow reasons that applied in the early 19th century to those times but do not apply today in the same way.
First, two states at the time required an absolute majority vote to choose presidential electors, and the provision allowed state legislatures to intervene if there was no absolute majority after the votes were cast. This problem does not exist today since no state requires an absolute majority vote in a presidential election.
Second, Congress had concern that bad weather on Election Day could interfere with the ability of citizens in a state to reach the polls. In extreme and unlikely circumstances that still might be a problem today, but a much narrower exception can be written to address this problem without giving state legislatures the ability to name the state’s presidential electors after the election.
Here’s the problem with the language of the 1845 Act as it now stands. The 1845 Act gives a state legislature the power to choose presidential Electors after the election by declaring that the voters in the state “failed” to make a choice on Election Day.
Thus, the following scenario could occur in 2024.
In the early morning of Wednesday, Nov. 6, 2024, the Associated Press declares that President Joe Biden has narrowly won the elections in Arizona and Pennsylvania in tight races against Republican candidate Donald Trump. This gives Biden the electoral votes he needs to defeat Trump, in a repeat of the 2020 presidential election.
But, a week later, the GOP-controlled state legislatures in Arizona and Pennsylvania meet in special sessions and, citing the 1845 Act, pass resolutions declaring, without grounds, that there was widespread voter fraud or that there were other voting problems in their states and therefore the voters “failed to make a choice.”
The two state legislatures then swiftly pass laws which provide that the legislatures shall appoint the presidential electors. This is in accord with the 1845 Act and its exception that provides that following a “failed choice” by a state, presidential electors will be appointed in the “manner as the State shall by law provide.”
The Arizona and Pennsylvania legislatures proceed to name the Trump presidential electors to represent the states in the Electoral College overriding the choice of the voters in their states, giving Trump the votes he needs to win in the Electoral College, and making Trump, not Biden, president.
Seem farfetched? Not really.
In light of Trump’s coup attempt following the 2020 election, and the continuing belief by a substantial portion of Republican officeholders and voters that Biden is an “illegitimate President,” there is little doubt that Trump would aggressively pursue an effort like this to grab the presidency if the voters rejected him again, and that some officials and legislators might support his efforts.
The ultimate decision about the legality of such an effort would likely end up in the hands of the Republican-appointed majority on the Supreme Court. That’s why it is essential for Congress to close the loophole in the 1845 Act.
Last summer, the late former Acting Solicitor General Walter Dellinger crafted legislation to fix the 1845 Act and eliminate the ability of state legislatures to override the choice of voters in a presidential election. (I worked with Walter in preparing the legislation.)
The proposed revision would greatly narrow the exception in the 1845 Act:
“Whenever any State has been unable to hold an election for the purpose of choosing electors on the day prescribed by law due to extreme weather circumstances or similar force majeure, the Governor of the State may set a date for another election to be held not sooner than one week and not later than three weeks after the prescribed election day.”
This change would not eliminate the ability to challenge voter fraud in presidential elections, but it would prevent state legislatures after Election Day from substituting their choice of presidential electors for the choice made by the voters. It would keep the choice of a president in the hands of the voters.
Of course, even if Congress fails to close the dangerous loophole in the 1845 Act, it would still be possible for a candidate or voter to bring a federal due process and equal protection challenge to any electors chosen by a state legislature which cast aside the choice of the voters. A judicial determination also could be sought that the state in question had not “failed to make a choice” on Election Day.
But these legal challenges would be novel, and the chances of prevailing in the current Supreme Court are uncertain at best.
Congressional revision of the 1845 Act is the only safe way to stop state legislatures from negating the choice of their voters in a presidential election. Congress must act to prevent another coup attempt by Trump or anyone else to ensure that the voters, not state legislatures, continue to choose the president of the United States.