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ENDGAME: THE RISK OF A TRUMP COUP AND HOW TO PREVENT IT  
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Jonathan Winer
September 17, 2024
The Washington Spectator
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_ Trump has plans to overturn an election loss. Phase I: erect
obstacles designed to suppress votes. Phase II: challenge the outcome
in key places where he loses. Phase III: use Congress to control the
Presidential result. There are ways to stop this. _

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Donald Trump’s plans for overturning the election result if he loses
again have become increasingly visible. This year, Team Trump’s
attack on our election system encompasses three distinct phases.

In _PHASE ONE_, state and local officials loyal to Trump—aided and
abetted by outside pressure groups and lawyers—erect obstacles
designed to suppress votes for Harris, Walz, and Democratic candidates
up and down the ballot. The Brennan Center has documented
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systemic enactment of laws designed to make it harder for eligible
Americans to register, stay on the voter rolls, or vote. These
Republican schemes were enabled by the Supreme Court’s shameful
decision in _Shelby County v. Holder_
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conservative majority voted 5-4 to narrow the Voting Rights Act.

That opinion, written in 2013 by Chief Justice Roberts (a Republican
appointee and life-long crusader against voting rights), led 29
states, including the entirety of the former Confederate States other
than Virginia, to enact at least 94 voter suppression laws over the
following decade. Those laws recurrently limit absentee voting, permit
partisan interference in elections, and threaten the people and
processes that make elections work.

Trump’s Phase One strategy now includes massive purges of the voter
rolls in key states like Georgia
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and Wisconsin
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It also extends to Republican strongholds such as Florida
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which has removed at least one million registered voters since 2022,
of whom 90% are reported to be Democrats or unaffiliated; and
in Texas
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well, where Governor Greg Abbott has trumpeted that state’s removal
of another million registered voters—all in the name of election
integrity.

_PHASE TWO_ involves multiple initiatives. First, Trump and his team
are sowing fear, uncertainty and doubt
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the validity of the elections, with the goal of weakening public
confidence in the process and the results, and laying the groundwork
for challenges to election outcomes in key jurisdictions that the
Trump/Vance ticket actually loses.

Trump supporters have already promised they will challenge electoral
count certifications
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any swing state in which election officials have found that Trump
lost. They are enacting laws that have the goal of enabling them to
shut down vote counting and vote certification, such as the new
Georgia law that gives power to a new MAGA-controlled Georgia election
board to delay and potentially prevent certifications
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are adverse to Trump.

There is also the risk of direct action by Trump supporters seeking to
physically block electors in states narrowly won by Harris
from meeting in compliance with state law
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and certify their electoral votes on December 17.  Such illegal and
potentially violent interventions would be aimed at preventing the
state from submitting its electoral votes in the time and manner
required by the ECRA.

In a recently released report
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the Center for Media and Democracy (CMD) identified 239 election
deniers in eight swing states (Arizona, Georgia, Nevada, New Mexico,
North Carolina, Pennsylvania, and Wisconsin).  50 are Republicans
running for the House or Senate, 6 are Republicans running for state
executive office, 102 are sitting state and county election officials,
and 81 are leaders of state and county Republican organizations.

While the strategic positioning and overtly anti-democratic views of
some of these individuals have gained serious mainstream attention in
major media such as _The New York Times_
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Washington Post_
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the same level of focus has not been afforded  _PHASE THREE,_ the
MAGA team’s post-election endgame.

_PHASE THREE_ would be activated should the Harris/Walz electors
certified by the states constitute a majority of votes in the
Electoral College. Phase Three has three minimum prerequisites. First,
MAGA forces must achieve control over at least one house of Congress
– and preferably both. Second, they must be united in their
determination to overturn the election by decertifying the electoral
votes for Harris/Walz in one or more states in which the state
executives have certified the Democratic ticket has won. Third, the
MAGA-leaning majority of the Supreme Court would have to find that
Congress has the power to throw out electoral votes that the
Congressional majority doesn’t like.

Let’s look concretely how Team Trump would get there.

_Using Control of Congress to Control the Presidential Result_

The easiest pathway for the MAGA forces to overturn a Harris victory
would be for Republican members of Congress to secure a majority in
both houses in the November elections, and then award the presidency
to Donald Trump in the upcoming Joint Session of Congress on January
6, 2025.

Following the requirements of the Electoral Count Reform Act
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the bi-partisan bill enacted in 2022 in response to pervasive election
denialism in 2020 and Trump’s orchestration of the January 6
insurrection, at least 20 Senators and 87 Members of the House would
first need to notify the Joint Session that they object to the
counting of electoral votes in just enough states won by Harris to
leave Trump with a majority of the remaining electoral votes.

The objections would presumably cover both of the grounds for
rejection as authorized under the ECRA: Republicans would argue that
electoral votes were not lawfully certified in the given state or
states under the laws of those state(s), and they would contend that
votes were not “regularly given,” on the basis of unproven claims
of mass voting fraud
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asserted election failures
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Under the ECRA (as with its 1887 predecessor, the Electoral Count Act
[ECA]), the two houses of Congress would then meet separately and vote
on whether to accept or reject the certification in those selected
states. The risk for Trump is that some Republican members would be
unwilling to go along with this strategy. But in practice, that risk
is primarily in the Senate, as he has effectively purged non-MAGA
Republicans in the House.

If Trump can get a MAGA majority in both houses, that partisan
majority could reject certifications of just enough states to take
away a Harris win in the Electoral College, thereby granting Trump an
outright majority of the remaining votes that were certified. Once
Trump’s Congressional supporters threw out the electoral votes of
the disputed states, Trump would become President.

Any such decision would then immediately be challenged in the Supreme
Court.

_Tyranny of the Majority_

Such an abuse by a MAGA majority control of the House and Senate, and
its ratification, would fly in the face of constitutional history.
Since the founding of the country, voting for president has always
been seen to be a power granted by the Constitution to the states,
with state legislatures establishing the rules for determining who has
won the electoral votes in the respective states. Indeed, the
provision in the Constitution that established the Electoral College,
the Presidential Electors Clause
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reads, “Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors.” How we count votes for
President is a matter in the first instance covered by state law,
subject to judicial review
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reflected in Alexander Hamilton’s Federalist Paper No. 78
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and not a decision by federal legislators.

Consistent with that framework, Team Harris would argue that neither
the 12th  Amendment
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the ECRA allow partisan majorities of Congress to toss out
state-certified results of a state’s electoral vote unless they have
been first invalidated by the courts. Congress has no constitutional
authority to substitute its own judgment to reinterpret state election
law. All that the ECRA permits is for Congress to have the right to
deal with the unlikely scenario in which a rogue state executive has
denied the results of the popular vote, by certifying electors for the
losing candidate – or has failed to certify the correct electors
based on the popular vote.

Team Harris would state that as a matter of due process and equal
protection of the vote, members of Congress do not have the right to
disenfranchise a state (or Congressional district) on the basis of
claims of “fraud.”  The case for Harris might even cite language
from the Supreme Court’s 2000 decision in _Bush v. Gore_
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that once a person has been granted the right to vote, it is unlawful
to “by later arbitrary and disparate treatment, value one person’s
vote over that of another.”

Team Trump would argue that the Constitution and the ECRA do grant the
Congress the right to reject any electoral votes they choose. They’d
likely cite the language of the 12th Amendment that the President of
the Senate “shall, in the presence of the Senate and House of
Representatives, open all the certificates and the votes shall then be
counted.” They could argue that this language is meant to enable
them either to assent to those certificates, or to object and seek to
invalidate particular certificates of electoral votes.

They could further state that consistent with their interpretation,
the ECRA, like the ECA before it, specifically provides a mechanism to
make such objections and have them heard. Should a majority of both
bodies object to the acceptance of the electoral votes of a particular
state, their objections must be sustained, and the votes deducted from
the total required for a majority, reducing the number needed for
Trump to declare victory based on the total number of electoral votes
that remain, in accord with the electoral vote counting procedures
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In this scenario, it would not be unimaginable for the six Republican
justices of the Supreme Court who voted to grant Trump
“absolute” immunity
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criminal prosecution for “official acts” within his “core
constitutional powers,” including crimes involving his direction to
officials at the Justice Department, to find a similarly breathtaking
authority in  the 12th Amendment and ECRA. This wing of the Court
could find that a MAGA majority of both chambers of Congress does have
the authority to make the final determination of whether particular
electoral votes are “regularly certified” or “regularly
given,” whatever state officials, state courts, or even federal
courts have determined.

Thus, a Harris electoral vote majority could be overridden by a
Republican congressional majority in both houses, backed by a
MAGA-leaning Supreme Court majority deploying raw political power in a
legislative and judicial coup to return an unpopular and, in fact,
unelected Trump back in the White House. There he could become, as he
has promised, a dictator on “day one.” The despotic end would be
achieved through despotic means.

_Tyranny of the Minority_

Given the risks for democracy of this kind of outcome, some might hope
that it would be enough for the Democrats to win a single chamber of
Congress – in 2024, this would most likely be the House of
Representatives – to prevent MAGA Republicans backed by the Supreme
Court from simply handing the Presidency to Trump counter to the
expressed will of the American public.

The ECRA expressly says that the electoral votes of a jurisdiction may
only be rejected if both chambers of Congress
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Surely this language expressly protects the country from the risk that
an out-of-control majority of a single chamber of Congress might try
to overturn a Presidential election by simply refusing to accept the
results of one or more states.

Here, Trump partisans might still try an end-run around the ECRA rule
designed to prevent a party holding a majority in just one house from
kidnapping a Presidential election. Their argument: no one elected to
either the Senate or the House is a potted plant. Each body has the
right to determine whether to accept an electoral count certificate.
The ECRA is therefore unconstitutional in purporting to limit the
right of members of _either_ the House or the Senate to pick and
choose what electoral votes they will deem to be valid.

Unfortunately, there is precedent for invalidating electoral counts of
states on the basis of decisions of just one chamber going back to
1865.  In the wake of the Civil War, Congress enacted the
“Twenty-Second Joint Rule,”
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created a one-house veto that authorized the House of Representatives
to reject electoral votes from former Confederate states. The House
then used this authority to unilaterally reject electoral votes
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some Confederate states in the Presidential elections of 1865, 1869,
and 1873. Accordingly, Team Trump would contend that a majority of the
votes of either house is sufficient to throw out electoral votes and
to subtract them from the total required for a majority.

In response, the Harris team would likely argue that the Joint Rule
was probably unconstitutional
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More importantly, whatever authority the post-Civil War Congress may
have had to enable one body of Congress to throw out those votes in
the aftermath of the Civil War, the current Congress has no such
authority now, given the Equal Protection rights guaranteed by the
14th Amendment and the enactment of the ECA in 1887 and the ECRA in
2022.  Each of these legislative acts expressly states that electoral
votes may _only_ be rejected by a concurrent decision of the
majority of both houses.

It is hard to imagine that even this Supreme Court would rule it
lawful for Trump partisans in a divided Congress to reject electoral
votes that have been deemed proper by the state’s own legal
processes. Furthermore, the Court could be confronted by Democrats in
the other chamber engaging in tit-for-tat to invalidate Trump
electoral votes, leading to chaos.

The Court, however, would have still another dangerous option to
consider.

_The Dangerous Solomonic Alternative – Moving to a Contingent
Election_

The Supreme Court’s MAGA-leaning members could choose an option that
appears neutral and fair, but would guarantee that Trump wins. That
option would be to find that in cases where the two Houses do not
agree on upholding the electoral count certifications in a given
state, those votes would not be counted, but also would not be
deducted from the total.

To justify this outcome, the Supreme Court might build on the equal
protection language from _Bush v. Gore,_ finding that to
disenfranchise the voters in some states but not others would violate
the principle of equal protection, and would in turn invite the two
chambers of Congress to engage in dueling disqualifications whenever
they were controlled by different parties.

Perhaps citing Justice Jackson’s famous statement
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Constitution is not a suicide pact,  the MAGA-leaning members of the
Court could rule that the portion of the ECRA which mandates that
invalidated electoral votes be deducted from the total required for a
majority is itself unconstitutional and inconsistent with
the 12th Amendment
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requires “a majority of the whole number of Electors appointed”
for a candidate to be elected. As neither candidate would then have
enough electoral votes to elect a President, the decision would move
to a contingent election in the House of Representatives, where a
state-by-state vote of the congressional delegations would determine
the result.

As I have previously described in detail
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such a procedure would almost surely result in the selection of Trump
as President. It is almost impossible for Democrats, even if they were
to win control of the House of Representatives, to win a majority of
the individual state delegations.  Given rampant gerrymandering, in
2025, Republicans are likely to retain control of the majorities in at
least 26 of the 50 states.

At that point, a House controlled by a Democratic majority might well
have tools to stop, or at least stall, an illegitimate contingent
election, and thereby place the Speaker of the House in the White
House under the terms of the Presidential Succession Act
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acting President) entering office as a result of a cooked-up
contingent election or by tactics employed to counter one would face a
crisis of legitimacy from the outset, amid grave risk of widespread
civil unrest.

_A Scenario To Save the Republic_

All of these nightmare outcomes remain avoidable. Should Harris win,
and Trump try to overthrow the election through such legal stratagems,
the ultimate safety valve will be for enough congressional Republicans
of conscience to opt _against _disenfranchising the electoral votes
of any state.

In a seemingly encouraging development last Thursday, September 12,
six Republican members of Congress joined a unity pledge
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committing to acknowledge whoever is certified at the joint meeting of
Congress in January 2025 as the winner of the election. While a step
in the right direction, the pledge does not address the possibility
that majorities in either the House or Senate may attempt to overturn
a legal certification made at the state level.

To vote against such an attempted coup in a situation in which
Republicans controlled both houses would take political courage. But
in practice, a few Senate Republicans choosing to uphold the
certification of every state whose votes have been certified by its
executive and not invalidated by the federal judiciary prior to
January 6, 2025 would likely be sufficient to prevent the Senate from
taking state-certified electoral votes away from anyone.

Senate Republicans matter most because the Senate is the chamber most
likely to be controlled by Republicans in 2025. In 2022, Susan Collins
(R-ME), was the principal Senate sponsor of the ECRA. She described
its purpose
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ensuring that the electoral votes tallied by Congress accurately
reflect each state’s vote for President, and recruited other Senate
Republicans to join her. Some of those Senators, such as Mitt Romney
(R-UT), will have departed by January 6, 2025. But Lisa Murkowski
(R-AK), Shelley Moore Capito (R-WV), Todd Young (R-IN), and Lindsey
Graham (R-SC), all of whom cosponsored the law, would still be in
office.

If this group of Republicans were to join their Democratic colleagues
to uphold all of the electoral votes submitted to the Senate by the
executives of the various states and the District of Columbia, on
January 6, then the Joint Session should be able to elect a President
and avoid a major Constitutional crisis without any intervention by
the Supreme Court.

Other Republican Senators might even support them to protect their
wider institutional interests.

Outgoing Republican leader Mitch McConnell (R-KY) has spent decades
building a Supreme Court with his personal stamp on it, and might want
to protect the Supreme Court from itself, seeking to arrest the
Court’s already collapsing legitimacy
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There is no love lost between him and Trump. After the January 6
insurrection, McConell made clear that he blamed Trump for inciting
the insurrection, privately referring to him as a “son-of-a-bitch”
who deserved impeachment
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McConnell could decide it is in his interests to join Collins,
Murkowski, and a handful of additional  Republican Senators to keep
Trump from illegitimately entering office with the help of the
conservative majority on the Supreme Court.

While a rump partisan Republican House could still ask the court to
invalidate electoral votes by finding the ECRA’s bicameral
requirement unconstitutional, a strong stance by enough Senate
Republicans to certify all of the electoral votes in the Senate would
provide the Court breathing room to steer the country – and the
Court itself – away from the maelstrom and toward the process of
healing American democracy in the post-Trump era.

_Jonathan M. Winer is a former U.S. Deputy Assistant Secretary of
State for International Law Enforcement._

_The Washington Spectator_ is a non-profit, reader-supported journal
of current affairs and commentary. We publish six bi-monthly digital
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