There's a very short law that's causing a lot of angst right now.
With @bartongellman@FareedZakaria & more talking about 3 USC 2, let's take a look at why an attempt to use it simply to override voters' will would be unlawful. /1
Here's the whole law:
"Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." /2
The worry is that "Trump can pressure Republican-controlled legislatures to ignore the popular vote in their Democratic-leaning swing state & instead select an Electoral College slate that supports him," as @tribelaw@jentaub & I said in @TheAtlantic. /3 theatlantic.com/ideas/archive/…
But that attempt would be unlawful.
1st, a legislature's claim that Election Day "failed" is something a candidate who won the state's popular vote can & should challenge in court if it's unsupported.
2nd, when the Constitution says states choose presidential electors "in such Manner as the Legislature thereof may direct," it means the legislature passes a law--which means governors get a veto. Legislatures can't do this alone.
3rd, there's constitutional due process. "When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental."
That's from Bush v. Gore & it means a legislature can't override the people's vote. /6
It's important that to discuss these issues, because Trump seems willing to play dirty to cling to power.
Let's make sure that even as we warn of foul play we explain why those moves would violate the law.
Because, ultimately, we may need judges & more to enforce that law. /END
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The Justice Department just filed its response to the lawsuit filed by Gohmert & more trying to force Pence to declare Trump the winner at the joint session of Congress on 1/6.
DOJ—the same DOJ that reports to Trump—says the lawsuit should be tossed out of court.
DOJ is right.
DOJ says any conceivable claims should’ve been brought against the House & Senate, not the VP.
That’s not just a technical point. It’s a huge (if obvious) acknowledgement that the VP doesn’t have substantive authority to reject slates of electors on 1/6–the suit’s key claim.
My @GeorgetownICAP colleagues & I, alongside @MikeSigner & more, sued the unlawful militias that had contributed to violence in Charlottesville exactly 2 months earlier.
A few months after filing our Charlottesville suit, we at @GeorgetownICAP published a catalogue of state laws that prevent unlawful, unsanctioned private armies.
Friday marks exactly 1 year since Americans read the 5 words that will forever define the Trump presidency:
"Do us a favor though."
Here's a quick look at how Trump's quid-pro-quo presidency remains alive & (un)well today. /1 nytimes.com/2019/09/25/us/…
"A president who abused the public trust for his personal benefit" defined what got Trump impeached, as @neal_katyal & I said.
"For a president to exploit for private political gain the tools of national power placed in his or her hands" was appalling. /2 nytimes.com/2020/02/05/opi…
But Trump didn't stop there.
Faced with a deadly pandemic, Trump played "states off 1 another for his affection, rewarding the generally Republican (or swing) states whose governors grovel at Trump’s feet."
There's a lot of concern right now about Trump & how he might handle an election loss after @bartongellman's article & the terrible answer Trump gave to @BrianKarem.
But we're not powerless to ensure a peaceful transfer if Trump loses.
Here's what can be done now. /1
1st, Electoral College reps, Members of Congress, governors, & Defense Department leadership can pledge to abide by election results regardless of any single candidate's claims otherwise.