Fewer still understand why former President Donald Trump and Republicans persist in their long-disproven claim that the 2020 presidential election was stolen. Much less why they are obsessed about making the 2024 race a referendum on the “stolen” election of 2020, which even they know was not stolen.
January 6 was never about a stolen election or even about actual voting fraud. It was always and only about an election that Trump lost fair and square, under legislatively promulgated election rules in a handful of swing states that he and other Republicans contend were unlawfully changed by state election officials and state courts to expand the right and opportunity to vote , largely in response to the Covid pandemic.
The Republicans’ mystifying claim to this day that Trump did, or would have, received more votes than Joe Biden in 2020 were it not for actual voting fraud, is but the shiny object that Republicans have tauntingly and disingenuously dangled before the American public for almost a year and a half now to distract attention from their far more ambitious objective.
That objective is not somehow to rescind the 2020 election, as they would have us believe. That’s constitutionally impossible. Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his annointed successor loses again in the next quadrennial contest.
The last presidential election was a dry run for the next.
From long before Election Day 2020, Trump and Republicans planned to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment, if Trump lost the popular and Electoral College vote.
Trump and the Republicans began executing this first stage of their plan months before November 3, by challenging as violative of the independent state legislature doctrine election rules relating to early- and late-voting, extensions of voting days and times, mail-in ballots, and other election law changes that Republicans contended had been unlawfully altered by state officials and state courts in swing states such as Pennsylvania, Wisconsin, North Carolina and Michigan.
Warted by the Supreme Court’s indecision on that doctrine, Trump and the Republicans turned their efforts to the second stage of their plan, exploitation of the Electoral College and the Electoral Count Act.
Thwarted by the Supreme Court in the first stage, foiled by their inability to come up with alternative state electoral slates in the second stage, and with time running out, Trump and the Republicans began executing the final option in their plan, which was to scare up illegitimate electoral alternative slates in various swing states to be transmitted to Congress. Whereupon, on January 6, Vice President Pence would count only the votes of the illegitimate electors from the swing states, and not the votes of the legitimate, certified electors that were cast for Biden, and declare Donald Trump’s reelection as President of the United States .
Pence declared Joe Biden the 46th President of the United States at 3:40 am on Thursday, January 7, roughly 14 hours after rioters stormed the US Capitol, disrupting the Joint Session and preventing Congress from counting the Electoral College votes for president until late that night and into the following day, after the statutorily designated day for counting those votes.
Trump and his allies and supporters in Congress and the states began readying their failed 2020 plan to overturn the 2024 presidential election later that very same day and they have been unabashedly readying that plan ever since, in plain view to the American public. Today, they are already a long way toward recapturing the White House in 2024, whether Trump or another Republican candidate wins the election or not.
Trump and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote. Barrett has not addressed the issue, but this turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct. .
Finally, they are furiously politicking to elect Trump supporters to the Senate and House, so they can overturn the election in Congress, as a last resort.
Forewarned is to be forearmed.
Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.
Although the Vice President will be a Democrat in 2024, both parties also need to enact federal legislation that expressly limits the vice president’s power to be coextensive with the power accorded the vice president in the 12th Amendment and confirm that it is largely ceremonial, as Pence build it to be on January 6.
Vice President Kamala Harris would preside over the Joint Session in 2024. Neither Democrats nor Republicans have any idea who will be presiding after that, however. Thus, both parties have the incentive to clarify the vice president’s ceremonial role now.
As it stands today, Trump, or his anointed successor, and the Republicans are poised, in their word, to “steal” from Democrats the presidential election in 2024 that they falsely claim the Democrats stole from them in 2020. But there is a difference between the falsely claimed “stolen” election of 2020 and what would be the stolen election of 2024. Unlike the Democrats’ theft claimed by Republicans, the Republicans’ theft would be in open defiance of the popular vote and thus the will of the American people : poetic, though tragic, irony for America’s democracy.