Coup Opportunity

It could happen in 2024.

Understanding these weaknesses has concrete utility right now. It will help shape Congress’s efforts to shore them up via reform of the Electoral Count Act of 1887, or ECA, which governs how Congress counts presidential electors.

Here’s the unsettling reality: If the ECA isn’t revised, under certain scenarios, all it would take for a future effort to succeed is a single corrupt GOP governor and a GOP-controlled House of Representatives.

Imagine that former senator David Perdue becomes Georgia governor, after winning a GOP primary against Gov. Brian Kemp, who is under fire from Trump supporters precisely because he refused to overturn the 2020 results. Imagine Speaker Kevin McCarthy controlling the House on Jan. 6, 2025.

If a Democrat won the state by a slim margin, and the election came down to it, Perdue could send a rogue slate of electors based on a fake pretext of election fraud, and the GOP-controlled House could simply count those electors. A Democratic Senate might object, but under the ECA, both chambers must object to a slate of electors to invalidate it, so it would stand.

Here’s the conclusion that emerges: Reform must thwart corruption at both the state and congressional ends. At the state end, one emerging solution in the Senate would trigger heightened judicial review when a state government fails to follow preexisting procedures in appointing electors.

But as noted, a GOP governor could ignore this, and a GOP House could play along. So Seligman suggests a second backstop: In an ECA reform bill, Congress could explicitly direct the Supreme Court to review Congress’ count after the fact, making it less likely to decline to intervene.

Meanwhile, at the congressional end, reform must address the other possible scenario floated above: a corrupt House and Senate refusing to count the correct electors sent by a non-corrupt governor and legislature.

Guarding against that requires raising the threshold for Congress to object to and invalidate electors, and making it ironclad that Congress must count electors that were legitimately certified.

Ultimately, getting ECA reform right will require balancing efforts to address all these threats. This is an extremely difficult problem. Some pundits are having a grand old time mocking those who are thinking through such scenarios. Their time would be more productively devoted to figuring out how to fix the system to avert such a meltdown, however unlikely it seems.