‘Rogue Governor Scenario’: House Anti-Coup Bill Could Prevent The Next Fake Electors Scheme

BOULDER, CO - APRIL 29: John Eastman, the University of Colorado Boulders visiting scholar of conservative thought and policy, speaks about his plans to sue the university at a news conference outside of CU Boulder o... BOULDER, CO - APRIL 29: John Eastman, the University of Colorado Boulders visiting scholar of conservative thought and policy, speaks about his plans to sue the university at a news conference outside of CU Boulder on Thursday, April 29, 2021. CU relieved Eastman of his public duties after he spoke at President Donald Trump's rally preceding the Capitol insurrection on Jan. 6. (Photo by Andy Cross/MediaNews Group/The Denver Post via Getty Images) MORE LESS

The long shadow of January 6th stretches far beyond the Capitol complex: As we’ve known for some time, right before the riot, conservative lawyer John Eastman tried to harness the vague 135-year-old Electoral Count Act (ECA) to help Trump steal the election.

That effort ultimately failed to keep Trump in power, but the Big Lie gave the far-right plenty of room to push baseless conspiracy theories about the nation’s electoral system, allowing election denialism to become somewhat of a campaign platform for Trump loyalists running in the midterms.

That’s why two separate bills have popped up in Congress in recent months, as lawmakers attempt to plug holes in the parts of the statute that Trump’s cronies tried to exploit two years ago.

On Monday, House Representatives Liz Cheney (R-WY) and Zoe Lofgren (D-CA) introduced the Presidential Elections Reform Act, which aims to overhaul the existing ECA and clarify what roles legislators are supposed to play in the vote certification process. The bill was passed on Wednesday evening 229-203, with just nine Republicans joining Democrats to support the measure.

This bipartisan proposal follows the Electoral Count Reform and Presidential Transition Improvement Act, a similar effort proposed by the Senate back in July, which currently has the GOP support needed to overcome the filibuster in the upper chamber.

The ECA became a political focus in 2021, when it was revealed that former Trump lawyer Eastman authored a memo sent to at least one Republican senator thatoutlined a six-point plan on how to use the statute to commandeer the vote certification process.

He asserted that then-Vice President Mike Pence had the power to choose which electors to certify “without asking for permission—either from a vote of the joint session or from the Court.” 

His theory — which has since been debunked to hell — rests on the fact that the century-old ECA consists of vague language that leaves unclear what role the vice president plays and renders the vote certification process vulnerable to bad-faith objections.

Since the violent Capitol insurrection, lawmakers in both chambers have vowed to study reforms that might prevent the next Jan. 6. The revelations following the attack about Eastman’s memo and then-DOJ official Jeffrey Clark’s fake electors scheme have only bolstered reform efforts.

Since at least November 2021, there has been talk on the Hill of looking at changes to the ECA, and around February this year, a bipartisan group of senators began seriously looking at rectifying the law, resulting in the proposal the group put forward in July.

The House and Senate bills are similar in scope: Not only do they clarify that the vice president’s role is purely ministerial, they try to circumvent what legal scholar and ECA expert Matthew Seligman calls a “Rogue Governor scenario,” in which a governor in a swing state submits fake electors to support the losing candidate the way Clark and other Trump allies tried to do in a bid to change the outcome of the 2020 election

“Both bills provide for judicial review in federal court, so the aggrieved candidate can challenge the governor’s certification,” Seligman explained. “Both bills attempt to bind Congress to count electoral votes cast by those electors, and only those electors, who are blessed by that federal court adjudication.”

Both the House and Senate bills would edit the parts of the that law permit states to appoint electors after Election Day if the state fails to do so, clarifying that the exception only applies to “catastrophic events.” The bills also aim to prevent legislators from appointing electors after Election Day despite extenuating circumstances. 

The House bill goes a step further by clarifying that if the rogue governor tries to defy a court order on electors, the court can designate another state official to submit a legitimate certificate.

“It tries to make it clear that the chief executive has a responsibility to certify the vote totals, and that there can be a lawsuit if [they] fail to do that, especially the governor,” Josh Douglas, an election law professor at the University of Kentucky, told TPM. “I think the goal is to streamline and make it clear that you can’t have competing officials in a state refusing to certify election results.”

Republican gubernatorial candidate Doug Mastriano of Pennsylvania has already been eyed as a potential rogue governor. A devout supporter of the Big Lie who has run his campaign almost entirely on Trump’s 2020 election grievances, Mastriano attended the Trump rally on January 6—along thousands of others he shepherded to the Capitol on buses. If elected, he’d have the power to choose Pennsylvania’s secretary of state, who’s in charge of certifying vote tallies.

Seligman argues that neither bill addresses the amount or complication of litigation that will arise if a governor triggers this kind of court battle over electors. “Both bills provide for federal court review in certain circumstances—but even under current law, lawsuits challenging,” for example, “a rogue governor, will happen.”

While there is risk of a prolonged legal battle over the election results in 2024, “that litigation would be much more orderly and provide sounder adjudication under either bill than under current law,” he said.

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