Yesterday CNN published an internal Trump White House memo from staff lawyer John Eastman proposing a post-election strategy for the Jan. 6th electoral college vote count in the Senate. It was discussed here and here.
The strategy was simply: Vice President Pence would refuse to accept the vote counts from seven states, and then declare neither Trump nor Biden won the 270 votes necessary to be elected. Pence would then call upon the House of Representatives to elect the President according to the 12th and refining amendments to the Constitution.
There is near-universal agreement, from Lawrence Tribe to Dan Quayle, that Pence did not have the authority to reject the state vote counts. But who was going to stop him? Not the Senate, which was in a 50-50 split. (The new Congress was sworn in before the count, an important detail.) Probably not the Supreme Court, which could easily dismiss the matter as political and “non-justiciable.” In short: Eastman figured they could get away with it.
They didn’t in 2020, but as many have said, the attempted coup should be viewed as a trial run, not as a failure. The many deliberate excesses of the Trump Administration will be guideposts for future Republican Presidents: not warnings of Abandon Hope All Ye Who Enter Here, but promises of Here There Be Treasure. So it is worth examining the Eastman plot.
The 12th Amendment spells out how the election of a President that falls to the House is counted. Each state gets a single vote, and a majority vote among the states is needed to elect. That means the representatives from each state gather together and vote on who the state will elect. There is no mandate or guidance on the criteria each representative uses to cast that preliminary vote.
Eastman’s memo reports that the makeup of the 2021 House gives Republicans control of 26 House delegations. I’m pretty sure he counted wrong—I’ll detail that in a comment below, to avoid hijacking the diary itself. I believe the count is 27.
One commenter in another diary suggested that Wyoming’s sole Rep. Lynn Cheney would not have voted for Trump by Jan 6th. That’s entirely possible. To get a “theoretical whip count”, let’s divide the House states into four groups, based on a) how the delegation splits between parties and b) who won the state (Biden or Trump). That gives us these states:
- Voted Trump, House delegation R: 25
- Voted Biden, House delegation D: 20
- Voted Trump, House delegation D: 0
- Voted Biden, House delegation R: 2
- Voted Trump, House delegation split: 0
- Voted Biden, House delegation split: 3
In this House vote, the three states with split delegations—Michigan, Minnesota, and Pennsylvania—are probably disenfranchised. Their delegation votes produce ties and the state doesn’t get tallied.
The representatives who can say, “The voters in my state voted for Trump and they elected a Republican delegation” have an easily defensible vote, just as those who can say “My state voted Biden and elected a Democratic delegation.” Those easy votes produce a 25-20 plurality for Trump. That isn’t enough: it takes a majority of state delegations to win the House election.
This puts the spotlight on the two states where the voters elected a Republican Congressional delegation but voted for Biden: Georgia (8R/6D delegation) and Wisconsin (5R/3D).
The various pundits would be shopping different plausible theories of how these conflicted delegations should vote. “Honor the voter choice and vote Biden,” says one crowd. “The reason you even get a vote is, the popular vote system failed this year! Don’t try to echo it: vote for the person you believe is best qualified!” (This asked of Republican House members). It would be extraordinarily foolish to bet on the House Republicans deserting Trump: in this scenario he gets re-elected.
Then things really heat up, as we calculate just which states representing how many people “elected” him.
We might want to avoid this next time.