Elections remain 'dangerously unprotected' against pro-Trump state legislatures: scholars

10 February 2024

Former President Donald Trump and his supporters' attempt to violently overturn election results on January 6, 2021 was unsuccessful, but two scholars are warning that there will almost certainly be another "legal coup" attempt in this election cycle.

In their latest book How to Steal a Presidential Election, authors Lawrence Lessig and Matthew Seligman lay out the myriad ways in which Republican-dominated state legislatures can undermine the will of the majority of voters. Lessig, who is a Harvard University law professor, wrote that the threat of a second Trump term would be catastrophic, saying it "would be worse than any political event in the history of America – save the decision of South Carolina to launch the civil war."

"[Trump] is a pathological liar, with clear authoritarian instincts," he wrote.

The Guardian reported that Seligman, who is a fellow at Stanford University's Constitutional Law Center, is particularly wary of trickery by GOP lawmakers in the current campaign cycle. He said their "brazen attempt to manipulate the legal system to reverse the results of a free and fair election" in 2020 will likely be repeated.

"Despite all the attention on January 6, 2021, our legal and political systems remain dangerously unprotected against a smarter and more sophisticated attempt in 2024," Seligman tweeted on the third anniversary of the January 6 attack. "We must be prepared."

Lessig and Seligman's book describes seven different ways GOP legislatures could subvert election results should President Joe Biden win a second term in November. While they don't believe a vice president has the ability to unilaterally overturn an election as Trump tried to get Mike Pence to do on January 6, they warned of other methods states could pursue to "invert" an election, meaning the result would be opposite of what the majority of voters supported. One theory is that a GOP governor could "intervene to certify a slate of electors contrary to the apparent popular vote." They also wrote that legislatures could try to insert themselves as the final arbiters of election results, rather than non-partisan county election officials. They also said it was a "very significant" possibility for legislatures to follow through on a "nuclear option" of cancelling an election before voters go to the polls and choosing a state's presidential electors directly.

"State legislators are free to deny their people a meaningful role in selecting our president, directly or indirectly," they wrote. "Is there any legal argument that might prevent a legislature from formally taking the vote away from its people? We are skeptical."

Click here to read the Guardian's review of Lessig and Seligman's book.

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