Could the Next Coup Attempt Hinge on the Meaning of the Twelfth Amendment? Why Risk it?

Posted in: Constitutional Law

Recently, there has been a torrent of revelations regarding the planning that led to the January 6 insurrection, Republican leaders’ reactions to that violent day, and the parallel nonviolent coup attempt that Donald Trump’s supporters in the White House and Congress tried to pull off.

One of the issues that has come back into the conversation is the Trumpists’ plan to have former Vice President Mike Pence reject slates of Biden electors from a number of states for being improperly appointed. The details of that plan, however, are somewhat murky, because in most tellings they rely on a fundamental misunderstanding of the Twelfth Amendment to the Constitution of the United States.

Interestingly, both Republicans and Democrats seem largely to agree on that misreading—or, perhaps, Democrats have not seen any reason to challenge Republicans on that particular error. But because the error could result in the US House of Representatives choosing a future president—which, because of gerrymandering and other flaws in our system, would all but guarantee a victory for Republicans—it might end up being extremely important to get this right.

Or not. Here, I want to explain why no presidential election between two non-trivial candidates should ever be thrown to the House (except in the case of an actual tie in the Electoral College) and why Democrats ought to say so. I will also, however, consider the possibility that, if Republicans are able to put in motion everything else that would be part of such a coup attempt, the Twelfth Amendment might not matter at all.

The Twelfth Amendment’s Fallback Provision Applies Only When the Electoral College Vote is a Tie

In one of the least imaginative naming exercises in recent memory, Trump’s closest advisors named their strategy to overturn the 2020 election “the Green Bay sweep.” The idea, I guess, was that they could get all Republicans in Congress running together in the same direction, just like the famed Packers offensive powerhouses of the 1960s. I am all for enhancing an explanation through the use of visual imagery, but this metaphor simply does not do that. “This plan will work if everyone who needs to work together works together” is true of every plan, after all.

But boring branding aside, what was everyone supposed to work together to do? The strategy amounted to what was obvious all along: having congressional Republicans on January 6 challenge the electoral college votes in state after state, dragging out the process of certifying the election results. Supposedly, this would have created enough time for Republican-led state legislatures to certify slates of Trump electors in states that Joe Biden won—relying on a constitutionally flawed theory that my Verdict colleague Vikram Amar recently debunked at length.

The underlying idea, however, did not in fact rely on creating rogue slates of electors at all. The core strategy was laid out in the now-infamous memo in which disgraced lawyer John Eastman claimed that Trump’s team only needed to have enough of Biden’s votes tossed out that Biden would be left with fewer than 270 electoral votes out of the 538 that could have been cast.

That idea had been floated months before the election, with Trump’s strategists asserting that reducing Biden’s votes below 270 would result in the election being sent to the House—where the votes would be cast by state rather than by congressional district. Where did this come from? From a misreading of the Twelfth Amendment.

In late September 2020, I co-authored a Verdict column with Professors Michael Dorf and Laurence Tribe, in which we showed that the clear text of the Twelfth Amendment did not support the Trumpists’ scheme. In particular, the House can only decide an election under that amendment’s undemocratic voting scheme—even more undemocratic than the Electoral College itself, which is truly saying something—if no candidate has the votes of “a majority of the whole number of electors appointed” (emphasis added).

But the crux of the Trumpists’ plan was to have Pence reject Biden-committed electors, which he would have justified by saying that they had not been properly appointed. Writing five weeks before Election Day, we used a numerical example that was in fact closer than the ultimate outcome, with Biden in our hypothetical world having won 288 electoral votes followed by Trump’s people negating Pennsylvania’s 20 electors, moving Biden under the 270 threshold.

Crucially, however, the plan did not have those 20 electors moving to Trump but only had Pence throwing them out as not properly appointed (because of some contrived complaints about ballot dumps, one supposes). That would have left the final count at 268 for Biden and 250 for Trump, which means that Biden would have won “a majority of the whole number of electors appointed,” which in turn means that the House would not have been called upon to decide the election. Biden would still have become the President.

Why Might This Matter in the Future?

In the end, we avoided losing our constitutional system—however temporarily—when Pence refused to play his designated role in the Trumpists’ lawless plot. And even if he had tried to assist in stealing the election at the January 6 session, it would (given the breadth of Biden’s ultimate victory) have required rejecting the electors not just from Pennsylvania but from two additional states even to get Biden under 270.

Unfortunately, many Democrats’ public comments have suggested that they do not dispute the idea that the House would decide the election even if Biden held a majority of the appointed electors. For example, Congressman Jamie Raskin—who has been providing tireless and exemplary service to the nation in his role on the House’s January 6 committee (after serving as the lead manager in Trump’s second impeachment trial)—said this during a TV interview last weekend:

Had Mike Pence succumbed to the extraordinary pressure and coercion campaign being brought down upon him by Donald Trump and his lieutenants, what would have happened is [that] Pence would have ‘returned to sender’ dozens of Electoral College votes, lowering Joe Biden’s vote total from 306 to below 270 in the Electoral College, if he had followed Trump’s orders and rejected Arizona and Georgia and Pennsylvania’s electors. At that point, it would have shifted the whole election into the House of Representatives, where they understood we would not be voting by one-member-one-vote but one-state-one-vote.

I want to be absolutely clear that I am not criticizing Congressman Raskin. He offered this rendition of the Republicans’ plan not to explicitly endorse their interpretation of the law but simply to tell the viewing audience what the Republicans had had in mind. Moreover, he offered that summary merely as part of his larger, compelling description of how America almost succumbed to fascism on that fateful day. He was, to say the least, not focused in that interview on the language of the Twelfth Amendment—and properly so.

(I should also state here that although the September 2020 Verdict column discussing the Twelfth Amendment was a collaborative effort among Professors Dorf, Tribe, and me, I have not conferred with them in writing today’s column. I have no particular reason to think that they would disagree with what I write here, but I would never presume to speak for anyone but myself.)

What worries me is that Raskin did not say, “even though that plan is incorrect as a matter of law,” or something like that. Should we ever find ourselves in a future election in which one candidate has a majority of the appointed electors, but the other side has pushed him or her below 270, we should all want it to be clear in advance that that candidate would—under a clear reading of the Constitution—still be the duly-elected President, and the House could have nothing to say about it.

Note that the Trumpists’ story involves multiple errors, including the claim that the Vice President has the non-ceremonial power to do what they wanted him to do on January 6. Even when we are focusing on other elements of the corrupt plot, we would not want to forget to affirm again and again that the Vice President simply cannot do what Trump said Pence could do.

If we do find ourselves in an election crisis in the future, therefore, it is important to have preserved every aspect of the process. “No, the Twelfth Amendment does not mean what Trump’s people think it means” should be part of the mantra that people who believe in the Constitution emphasize. Otherwise, we could end up with Democrats in the future saying, “I guess we can’t stop the House from deciding the election.”

In for a Penny, in for a Pound: But Does Any of This Truly Matter?

As important as it is to maintain a clear understanding of the Constitution and to resist efforts to distort it, one might ask whether this is a non-issue in the real world. Would it ever reach the point where we could have an election as I described above, in which the Vice President throws out enough electors to move the other party’s candidate under 270 but stops there?

Note that I am not talking about any of the other reasons why we might never find ourselves in the scenario that Trump’s lieutenants imagined. Voter suppression alone is likely to give Republicans an unbreakable Electoral College majority in future presidential elections, and if that does not work, they are taking over states’ vote-counting processes to make the will of real voters irrelevant.

And even if Democrats somehow overcame all of that, there is still the “independent state legislatures” theory. As I mentioned above, Dean Amar has thoroughly disproved that theory (as have others), but the Republican-dominated Supreme Court might accept it. In that case, states like Michigan, Pennsylvania, and Wisconsin that have Democratic governors but heavily gerrymandered Republican majorities in both houses of their state legislatures could appoint Republican slates of electors that the Republican Vice President would accept as properly appointed. In that situation, when the Democrat loses the electors that he in fact won, those electors would be not merely thrown out but replaced with Republicans. A 306-to-232 vote would not be turned into, say, a 260-to-232 vote in favor of the Democrat. It would be, in that instance, 278-to-260 for the Republican.

Therefore, I am describing a very particular set of circumstances: the Democratic presidential candidate has won 270 or more electoral votes, the January 6 hearing sees Republicans challenge enough electors to get the Democrat’s total under what they view as the magic number, and the Vice President agrees to reject those electors without replacements.

Prior to 2020, even my most fevered nightmares about elections would never have included anything so weird. Even so, we now know that many once-thought-impossible scenarios can become reality. How would a correct understanding of the Twelfth Amendment possibly prevent disaster?

Using the 2020 results as an example, Biden’s 306 electoral votes could have been tossed out by Pence as challenges arose for each state—again, bearing in mind that the Vice President in fact has no power to do any of this. Imagine that Republicans proffered contrived evidence of voter fraud in Arizona, Pennsylvania, and Michigan, and Pence then threw out a total of 47 Biden electors, reducing Biden’s total to 259 (with Trump still at 232). Under the incorrect view of the Twelfth Amendment, the House would take its one-vote-per-state vote and Trump would be declared the winner.

Under the correct view of the Twelfth Amendment, Republicans would have to find a way to strip another 28 votes from Biden, which would mean challenging Georgia’s 16 and Wisconsin’s 10 plus at least one more state. Imagine that people like Mitt Romney had been sitting through the proceedings thinking: “All right, I’ll go along with the game on the first three or four states, at most, but there is just no way I can justify agreeing with the even flimsier challenges for the other states.”

In that case, forcing the Republicans to take votes to reject more states makes their climb steeper. It might even stop the coup.

All of which means that I can tell a tale in which this could matter, but would it really happen that way? Once Republicans started to reject slates of electors, the sole point would be to know in advance the number of electors that they needed to knock out, and then they could find a way to get there. Once they were in for the proverbial penny of sedition, why not go in for the full pound? Why would any of them stop at some arbitrary point in the middle, flouting the Constitution but not doing so in a way that in fact changes anything?

For all of his illogical flailing in his ridiculous memo, Eastman apparently argued that Republicans should challenge seven states’ results, more than enough to reduce Biden’s total below Trump’s, with one state to spare. After the Republicans had rejected the first three states’ electors and begun to high-five each other, a principled constitutionalist like Congressman Raskin could stand up and say, “Excuse me, but at 259-to-232, Biden still wins.” Then, however, the Republicans could simply say, “Fine, we’ll keep this up until we get to whatever number we need.”

In the larger scheme of things, then, it most likely would never matter whether anyone misreads the Twelfth Amendment. Too many other things can go wrong, and a sufficiently committed anti-constitutional political party with control of both houses of Congress can do whatever it wants.

Still, on the outside chance that a future election could ride on this key difference, it seems worth reminding everyone that even this completely bonkers Trumpian strategy was based on an erroneous understanding of the constitutional provision on which the entire plan hinged. That is, as they say, not nuthin’.

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