In recent weeks, we’ve gotten an even greater glimpse into Donald Trump’s efforts to discredit and overturn the results of the 2020 election. From the clownish ongoing audit in Arizona to the revelation of Jeffrey Clark’s insane and rejected December plan for the Department of Justice to cajole legislatures in states Biden won into overturning those results to the attorneys being sanctioned for their frivolous Trump election lawsuits, the 2020 election subversion attempt is being shown every day to have been a Keystone Cops Coup.
The crude and failed nature of Donald Trump’s attempt to destroy the 2020 election has made it easy to dismiss as overblown concerns about the integrity of the 2024 election too. After all, court after court rejected attempts by Trump and his allies in the aftermath of the November 2020 count to prove that fraud affected the election results. Despite Trump’s attempts to pressure state election officials, governors, state legislators, and officials at the U.S. Department of Justice like Clark to get state legislatures to meet and declare new electoral college votes for him after the presidential vote was certified for Biden in each challenged state, the system (barely) held, and Trump was removed from office on January 20, 2021.
But there has been a subtle shift in how Trump and his allies have talked about the supposed “rigging” of the 2020 election in a way that will make such claims more appealing to the conservative judges and politicians that held the line last time around. Come 2024, crass and boorish unsubstantiated claims of stealing are likely to give way to arcane legal arguments about the awesome power of state legislatures to run elections as they see fit. Forget bonkers accusations about Italy using lasers to manipulate American vote totals and expect white-shoe lawyers with Federalist Society bona fides to argue next time about application of the “independent state legislature” doctrine in an attempt to turn any Republican presidential defeat into victory.
Trump signaled as much in his March 2021 interview with the Washington Post’s Carol Leonnig and Phil Rucker for their book, I Alone Can Fix It, and key conservative operatives have sent the same signals according to Jane Mayer’s recent blockbuster reporting in the New Yorker about the big money behind the Big Lie.
Trump’s interview with Leonnig and Rucker got attention for Trump saying that he spoke to a “loving crowd” on Jan. 6 before some of them violently stormed the Capitol to try to stop Congress’s electoral college vote count. But what caught my ear was Trump’s explanation of why he said the election was “rigged.” Even putting supposed “massive” fraud aside, he said in posted audio of the interview,
the legislatures of the states did not approve all of the things that were done for those elections. And under the Constitution of the United States, they have to do that. And the Supreme Court, they didn’t find fact—don’t forget, they didn’t say they disagreed—they said we are not going to hear the case. I’m very disappointed in the Supreme Court. Had Mike Pence had the courage to send it back to the legislatures, you would have had a different outcome, in my opinion…. Before you even start about the individual corruptions … when you are handed these votes, and you know that the legislature of any one of those states did not approve those vast changes—hours, days, when to vote—it was all done, local politicians and local judges—right there you should have sent them back to the legislatures. And I can show you letters from legislatures. They wanted them back… Had they gotten them, it would have been a much different story.
It wasn’t just Trump advancing this argument to try to overturn the election. It also was a cadre of conservative activists like Leonard Leo, co-Chairman of the Federalist Society, whose Orwellian-named “Honest Elections Project” pushed the same argument before the Supreme Court. As leading election law scholar Nate Persily told Jane Mayer for the New Yorker, the Independent State Legislature doctrine is “giving intellectual respectability to an otherwise insane, anti-democratic argument.”