A staunch conservative’s urgent warning to the GOP about Trump and 2024

A staunch conservative’s urgent warning to the GOP about Trump and 2024

Greg Sargent — Read time: 4 minutes

Yesterday at 9:16 a.m. EST

Donald Trump is telling us exactly how he intends to rerun his coup attempt, should the conditions align for it in 2024. He regularly flaunts his view that attempting to overturn his 2020 loss was the correct thing to do, even as he seeks to install loyalists, one by one, in positions of control over the 2024 election.

It is a depressing fact about this moment, and about our country, that most Republicans do not see all this as disqualifying in a 2024 standard-bearer. But that leaves a question: Will Republicans at least act to make such an outcome less likely to succeed?

A widely respected conservative former federal judge just issued an urgent warning about Trump’s intentions that clarifies the stakes. In a New York Times op-ed, J. Michael Luttig makes the “conservative case” for reforming the Electoral Count Act of 1887, or ECA, for the express reason that failing to do so will make it easier for Trump to steal the 2024 election.

This should be a seminal moment in the debate over the ECA. It should also make it harder for Republicans to keep playing the role of apologists about Jan. 6 — and about Trump’s future intentions.

Luttig minces no words, declaring that Trump and his allies pose a “clear and present danger to our democracy.” Luttig says they are preparing to “exploit” the ECA to “seize the presidency in 2024” if Trump or his “anointed candidate is not elected by the American people.”

We know Trump is doing this, because he told us so.

Luttig, a “staunch conservative" and appointee of President George H.W. Bush, notes that Trump recently declared his vice president should have “overturned the election." In so doing, Luttig rightly points out, Trump signaled he thinks the ECA’s ambiguities provide a way to do just that, and that he’s fully prepared to try it again.

The key nuance here is that the threat next time will not be the vice president abusing her powers to count legitimate electors (though ECA reform should further clarify that the veep has no such powers). Rather, the threat stems from other problems in the ECA.

As Luttig puts it, here’s how ECA reform should address those problems:

Congress should formally give the federal courts, up to and including the Supreme Court, the power to resolve disputes over state electors and to ensure compliance with the established procedures for selecting presidential electors — and require the judiciary’s expeditious resolution of these disputes. Congress should then require itself to count the votes of electors that the federal courts have determined to be properly certified under state law.

Here’s what this means. Luttig aims to address the scenario I’ve reported on: A single governor in a state poised to decide the election sends sham electors for the losing candidate, in defiance of the state’s popular vote, and a GOP-controlled House counts them.

Under the current ECA, those electors would count, even if the Senate refused to count them. That’s because under current law, both chambers must sustain objections to electors for them to be invalidated.

With this reform, if a governor or state legislature appoints fake electors, the courts would declare that only electors appointed in accordance with the popular vote are real. A reformed ECA would require Congress to count only those electors.

But what happens if a GOP-led House ignores that law and counts the fake ones? Well, here ECA reform could direct the Supreme Court to resolve that dispute after Jan. 6, in keeping with the law stating that only the correct electors count.

All this is in keeping with what Luttig proposes above. Having this validated as “conservative” reform is a big step forward.

"Luttig is a conservative legal giant who was on the short list to be a Supreme Court justice for a decade,” Seligman told me. “There is no one whose view matters more in defining ECA reform as in keeping with conservative principles.”

Luttig also suggests raising the threshold for Congress to invalidate electors, to guard against Congress refusing to count correctly appointed ones.

Many people worry that judicial review is an insufficient defense. But here’s the thing: It’s basically either that or a situation in which a Speaker Kevin McCarthy decides which electors count.

Which brings us back to the key question: Will 10 GOP senators support this reform?

Those who fancy themselves presidential material might decide they must oppose it. After all, support might constitute an admission that Trump actually did try to exploit vulnerabilities in our system to stay in power illegitimately. That might be why Sens. Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.) have already cast doubt on reform.

But as Luttig puts it in his op-ed:

Come to think of it, the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.

Trump’s comments and actions, along with the Republican National Committee’s recent suggestion that Jan. 6 constituted “legitimate political discourse,” are leaving no middle ground: Either Republicans are for insurrection, or they’re against it.