The Electoral College Nightmare That Could Have Happened | Opinion

So key election reform is a must

As an observer who spent a lot of time over the last six months raising awareness of the worst way a close election could play out—with the Trump campaign challenging election results by attempting to overturn a Biden Electoral College victory—the good news out of this election is that very dark scenario has not happened.

During these last several months many believed that the scenario former senator Tim Wirth and I described (with great input from Keep Our Republic) of how the Trump campaign would attempt to overturn a clear Biden Electoral College victory was too far-fetched for even ardent Trump critics to take very seriously. The bad news is, however, despite it being clear Trump has lost the election, his team has attempted to undo the will of the electorate by pursuing that exact strategy—trying to undermine the very clear Electoral College results.

Rudy Giuliani and his amateurish legal team have overtly attempted to block the final certification of state votes in order to claim Republican state legislatures must take control and appoint their own slate of electors. The fact that they were still pursuing this strategy when it was abundantly clear it would fail makes it all the clearer that if the election had been any closer, this very dark strategy of subverting the proper Electoral College process in order to send the election to the House of Representatives would have gotten real momentum. Fortunately, the Biden margin in key swing states was large enough to avoid this calamity.

In reality though, the election results were far closer than Biden's nearly 6 million popular vote margin would suggest. The combined total vote margin for Biden in three critical states—Arizona, Georgia and Wisconsin—amounted to only 44,000 votes. This is even fewer than the 77,000 that Trump won by in 2016 across Michigan, Wisconsin and Pennsylvania that gave him the presidency. If Trump had in fact won those 44,000 votes (a tiny fraction of the 150 million cast), the Electoral College vote would have been a 269-269 tie, and the election would have been decided by the House of Representatives. As I have pointed out several times over the last six months, the state delegation-by-delegation vote in the House would have resulted in Trump being reelected.

Given how close the Biden margin was, if that three-state total had been much thinner than 44,000 votes, an attempt to steal the election through the strategy of end running the Electoral College through the Republican state legislatures, may have actually succeeded. Most remarkable is that, even in the absence of any ruse narrative to support nullifying the legitimate Electoral College outcome—say a Justice Department investigation into Chinese infiltration of the election—the Trump campaign pursued the strategy anyway with a bald assertion that the Electoral College vote should be overridden.

There are three relatively easy reforms that would go a long way toward protecting against a future presidential candidate attempting an end run around a legitimate Electoral College vote.

The first would make it more difficult to weave a narrative that something untoward happened during the election counting process. It was very obvious that with all the absentee ballots, there would be a red mirage followed by a blue wave, but the inability of states like Pennsylvania to announce results on a more timely basis provided fodder for the insinuation that something was amiss, despite how predictably the count would play out.

The most important way to avoid this in the future is to have all states count their absentee ballots before Election Day. Laws currently in effect in a number of states don't allow counting until Election Day itself. This is within the jurisdiction of individual states to take action on, and legislation needs to be introduced in each state where early absentee ballot counting is not permitted.

Two other key reforms can be set at the federal level. These would amend the Electoral Count Act of 1887, the 130-year-old, less-than-elegantly-written statute that governs the Electoral College selection process. The act needs to be amended to provide that electors may only vote for the winner of the popular vote of the presidential election in the state. This would also deal with the equal protection constitutional issues that the Supreme Court has raised as a concern. While many states have such laws, this reform will help remove any ambiguity over whether state legislatures could award electors as the Trump campaign pressured them to do. It would protect against state legislatures taking the matter into their own hands and appointing an alternative slate of electors. Any suggestion that state legislatures can come up with some basis for awarding Electoral College votes other than the popular vote must be clearly outlawed.

Donald Trump
President Donald Trump leaves after speaking in the Diplomatic Room of the White House on Thanksgiving on November 26, 2020 in Washington, D.C. Erin Schaff - Pool/Getty

This reform needs to be coupled with a requirement that any law governing the choosing of electors in a state has to be set at least two months before Election Day. This would significantly constrain state legislatures trying to intervene after the election or play games with election procedures too close to the election to create a path to appointing an alternative electoral slate.

While the election throughout the 50 states was executed far more successfully than anyone anticipated—thanks to the excellent work of state, county and local election officials throughout the country—there is no doubt that the truly malevolent "steal the election" plan was not a hypothetical possibility, but the full-fledged intent of the Trump campaign all along. The democratic guardrails held, and as Chris Krebs, the Department of Homeland Security official responsible for election security, said, this "election was the most secure in American history."

Shockingly but not surprisingly, instead of some foreign government, it was the Trump campaign itself whose strategy was to undermine our election integrity all along. The Republican refrain, that everyone should let the lawsuit recount process play out without calling out how chillingly anti-democratic this entire strategy was, did not own up to the threat the Trump strategy could have posed. As Mitt Romney stated, it is "difficult to imagine a worse, more undemocratic action by a president."

It is now incumbent on state bar associations to play their part in disincentivizing lawyers from filing the kind of meritless cases that the Trump campaign attempted to use to convince state legislatures to end run Biden's Electoral College victory. As former Senator Wirth and I wrote a few weeks before the election, it was very important that those with disciplinary responsibility overseeing the legal profession in each state warn campaign lawyers that frivolous cases, intended to strip citizens of their precious right to vote, would face serious sanctions.

There does not seem to have been any bar association or legal regulatory body which put out cautionary statements before the election, but in light of the Giuliani team's pursuit of totally frivolous legal actions, the precedent of imposing penalties must be set so that future campaigns do not think this is a path they can take without any enforcement consequences. When the two primary law firms handling the Trump election cases refused to continue to press the lawsuits because of a lack of evidence, it could not have been clearer that the Trump campaign legal effort was exactly the type of action that we warned against. As the judge in the Pennsylvania Trump campaign case stated, all that was presented were "strained legal arguments without merit and speculative accusations" that were "unsupported by evidence." That abuse of the legal process, especially in a national election, cannot be tolerated.

Trump's dark electoral strategy was just one example of malfeasance and evil intent in the administration. While the machinations attempted in the election process have became publicly evident, there is much we don't know about matters that happened behind closed doors on other fronts, where more remedies will be needed. From a president personally profiting off of official federal business to interfering in Justice Department investigations, there is a laundry list of issues crying out for ways to prevent recurrence by another president. Yet, to craft the right prophylactic remedies, sunshine must be brought to what went on in the dark rooms beyond public view.

To assure that the sunshine disinfectant can be applied, the House of Representatives should immediately begin issuing subpoenas covering every last potential area of concern. It is not that anyone would expect the Trump administration to agree to turn over documents related to a variety of matters that warrant much deeper investigation—the point is to make sure all material is preserved in order to best devise the necessary new protective guardrails.

Destroying documents subject to a congressional subpoena is a federal crime that would be prosecutable by the Biden administration. Some of the relevant criminal statues carry penalties of up to 20 years in prison. That can be a pretty big disincentive against someone carrying out an order to deep six damaging documents. Since the Trump administration is still holding on to the fantasy that there will be a second Trump term, now would be the time for subpoenas to fly before politically appointed administration officials begin packing their bags and shredding all they can on their way out.

To prevent gaps in subpoena coverage, when the new Congress convenes on January 5th, all those subpoenas need to be renewed since those issued today would expire at the end of the current Congress (given that the Trump administration will continue to serve until January 20th). Preserving the records and emails upon which reforms need to be built is a must in order to protect against an administration ever conducting itself this way again.

The good news is, the will of the people won out. With a new administration on the way, let's focus on the election reforms that must be put in place, and let sunshine beam in on a host of other areas. We need to show we have learned from this chapter in history and assure all the worst anti-democratic behavior of the Trump administration does not happen again.

Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chairman of Engine Media and is former senior counsel to a congressional committee.

The views expressed in this article are the writer's own.