There Should Be a Law, But is There?

The January 6 investigation committee and investigative journalists are revealing more and more of the full extent of the plot to overturn the election, from forged electoral certificates to calling on the Department of Homeland Security to seize voting machines, to say nothing of spinning theories to allow Congress or the Vice President to ignore the outcome of the election.

The obvious question to all of this is, is it illegal?  You see, when something is illegal, it means that people have done it in the past.  The truly unthinkable is never illegal because no one ever thought to outlaw it.  Thus it probably never occurred to anyone to forbid private citizens from declaring themselves to be electors, or Congress from accepting them as electors, or the Vice President from overriding Congress and throwing out the vote in states where private citizens claimed to be electors, or for people to cajole or plan to do any of these things.  Thus there may very well not be laws against doing any of those things.

There are laws against falsifying election results -- against throwing out legitimate ballots or against voting if one is not registered or voting more than once and so forth.  These are very thinkable crimes that have been committed many times.  And there are probably laws, both federal and state, against using the machinery of the government to tamper with election results.  

But are there laws against state legislatures overruling the voters and choosing a different slate of electors?  Are there laws against private citizens declaring themselves to be the elector?  Are there laws against Congress accepting as electors people not chosen in ways established by state law?  Or against the Vice President of rejecting electors if Congress won't?  Or against Congress or the Vice President sending the vote back to the states if they don't like the results?  All of these fit into the category of things so unthinkable that no one thought to forbid them.  

So let's start with some basics.  

The U.S. Constitution Article II, Section i, paragraph 2 provides that, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . "  This is the section that leads to controversy over whether every change, no matter how minute, in election procedure requires an act of the state legislature.  Clearly, though, if a legislature decides that the people cannot reliably counted on to vote Republican while the legislature can always be safely gerrymandered, the legislature is free to have presidential electors chosen by the state legislature and not by the people directly.  In fact, that was how electors were normally chosen at the beginning.  In New Jersey, electors were originally chosen by the governor and council.  I suppose it would even be constitutional for a state legislature to make a law that presidential electors will be chosen by the central committee of the state Republican Party.  But having the electors chosen by the legislature is one thing. Having the legislature decide that the people will choose and then attempt to change the rules after the election if the legislature does not respect the outcome is quite another.  To be clear, such an action would not be a crime.  No legislation, no matter how outrageous, is a crime.  But it can be invalidated.  The Electoral Count Act (3 USC 5) provides that:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

 (Emphasis added).  Yes, the legalese is a bit dense, but basically this means that once a state holds an election under a pre-determined process, both Congress and the state are bound by the results.  Furthermore 3 USC 15 of the same act provides that:

If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed.

This does not criminalize putting up an irregular slate of electors, but it does declare the irregular slate to be invalid.  No wonder John Eastman wanted to find this statute unconstitutional!  And I suppose it does raise interesting questions about whether one Congress can pass a statute limiting the procedural actions of a future Congress.  But the constitutional principle in the Electoral Count Act is sound.  Once a lawful vote is made, neither Congress nor the state may modify it.  If you are concerned about whether one Congress can constrain its successors in their general conduct -- well, the statute can be changed.  The change merely has to be passed by both houses and signed by the President. 

As for criminal law, Title 18 of the U.S. Code has a whole panoply of federal crimes.  Chapter 29 deals with elections.  For instance 18 USC 593, barring military inference in elections provides:

Whoever, being such officer or member [of the armed forces], interferes in any manner with an election officer’s discharge of his duties— Shall be fined under this title or imprisoned not more than five years, or both; and disqualified from holding any office of honor, profit or trust under the United States.

 This may be why Rudy Giuliani wanted the Department of Homeland Security, not the armed forces to seize voting machines.  This does not mean that such interference would have been legal if done by Homeland Security either.  Under 18 USC 595:

Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof  . . . uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.

That would appear bar the Department of Homeland Security from seizing voting machines as well as the armed forces, although doing so would carry a sentence of one year instead of five.  In short, there are clear federal laws against using federal executive machinery to sway the outcome of  an election.  There is some dispute as to whether the false electoral certificates are criminal forgeries. 

But so far as I can tell, there are no laws against elected officials trying to persuade state legislatures to overturn a popular election and appoint its own slate of electors, even though the Electoral Count Act that such an action will not be valid.  And it does not appear to be illegal to attempt to persuade the Vice President or a member of Congress to violate the Electoral Count Act, at least so long as no bribe or threat is involved.   

The unthinkable has now been done.  We need laws to keep it from happening again.