For understandable reasons, the main takeaway from Donald Trump’s interview with ABC News’s Jonathan Karl was his failure to condemn supporters who called for Mike Pence to be hanged on Jan. 6. But it’s also worth elevating another claim Trump made in that same interview.
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“When I spoke to him,” Trump said of his conversations with Pence before that day, “I really talked about all of the fraudulent things that happened during the election. I didn’t talk about the main point, which is the legislatures did not approve — five states. The legislatures did not approve all of those changes that made the difference between a very easy win for me in the states, or a loss that was very close, because the losses were all very close.”
If you have been paying only casual attention to Trump’s extended efforts to undermine the results of the 2020 election — an election resolved 53 weeks ago, in case you’re counting — this assertion about state legislatures might be an unfamiliar new one. Most Americans are probably used to his arguments about rampant fraud (which didn’t occur) and wide-scale illegal voting (for which he’s never offered credible evidence), but that’s not what this is. (Trump has been talking about this long enough that he doesn’t go into details, which is what happens when he talks about things for an extended period of time. He will just sort of references things he has said before and assume you know what he’s talking about.)
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What Trump is saying here is that changes to voting rules before the 2020 election in several states were not made by state legislatures and therefore were invalid. By extension, the votes cast under those rules — mostly mail-in votes that favored Joe Biden — were invalid. By extension, the election was stolen.
This argument emerged at the end of last year when Republican officials were trying to square a rapidly rolling circle. Trump kept claiming that the election was stolen, which it wasn’t, and Trump’s raucous base demanded that Republicans agree. So some clever Republicans, including Sens. Ted Cruz (R-Tex.) and Josh Hawley (R-Mo.) landed on this “the rules were changed illegally” bit. This was parallel to the centerpiece of Hawley’s plan to object to the electoral votes submitted by Pennsylvania on Jan. 6, the idea that the rules had been changed inappropriately.
John Eastman, the attorney at the center of Trump’s belief that Pence could simply reject the submitted electoral votes, leveraged similar claims. A first draft of the memo in which he claimed that power for Pence didn’t attempt to justify the maneuver. But, after a negative response, he wrote a longer one that included a delineation of what he described as “illegal conduct by election officials.” It articulated what he claimed were illegal changes made in six states, and, presumably, it overlaps with what Trump was referencing to Karl.
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But these are not valid claims, for two reasons. The first is that almost all have already been adjudicated by courts and had been when Eastman wrote, blunting the idea that the changes were unacceptable violations of the law. Instead, the argument is akin to the one Eastman makes about Pence’s power: Operate from a position that it’s unconstitutional and let the Supreme Court decide. The second reason the claims are invalid, of course, is that they depend not on the idea that illegal votes were cast but that votes were cast illegally. My mother lives in Pennsylvania, for example, and cast a mail-in ballot in that state. Trump, Eastman and Hawley are arguing that her vote shouldn’t count simply because they think the law allowing her to vote by mail was unauthorized.
This is not voter fraud.
But you don’t have to take my word for this. In his memo dated Jan. 3, Eastman claims that the secretary of state in Georgia “altered signature verification requirements via an unauthorized settlement agreement” — an assertion that was dismissed by an appeals court in December. He outlines a number of changes to the law in Pennsylvania — noting that all of them were sanctioned by the state Supreme Court, the authoritative body on the constitutionality of the changes.
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Eastman describes the court as “partisan-elected,” an attempt to cast those decisions as rooted in politics. He complains about the use of unmanned drop boxes in Wisconsin, a change authorized by that state’s Supreme Court. He challenges Michigan’s sending absentee ballot applications to every voter, well after it had been cleared by an appeals court. He casts Nevada’s use of automated systems to verify signatures on ballots as illegal, even though a federal judge authorized it.
It’s not just that he was objecting to things that had already been evaluated by the courts. It’s that he was objecting to things that the Trump campaign had tried to fight even before the election occurred in many cases, and on which it had lost. It’s a demand that the assertions of Trump and his allies be treated as valid even after independent arbiters had pointed out that they weren’t.
And, again, in service to the idea that votes cast by voters following the rules in their states should be discarded to Trump’s advantage. The chief justice of the Pennsylvania Supreme Court actually weighed in on this idea in response to one of the challenges to the state’s expansion of mail-in voting.
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“There has been too much good-faith reliance, by the electorate, on the no-excuse mail-in voting regime created by Act 77,” Chief Justice Thomas G. Saylor wrote in late November, “to warrant judicial consideration of the extreme and untenable remedies proposed by appellees.” Even if the law (passed pre-pandemic by the Republican majority in the legislature) violated the state constitution (which was not determined to be the case), millions of people had simply voted the way the law allowed them to do so, and there was no reason to reject those ballots.
It’s important to articulate all of this because of the position these arguments hold in the Republican effort to defend Trump’s false claims about the election. Few members of the establishment want to echo his clearly false claims about rampant fraud, particularly given that the 12-month effort to prove those claims has returned empty-handed. So they settle on this well, the Democrats manipulated the system! bit in order to be able to nod when the Republican base hollers about the election being stolen. It’s the political equivalent of making a promise while you keep your fingers crossed behind your back.
There is no good-faith, well-founded argument that Trump won the 2020 election or for assertions that it was stolen. In this case, they come down to an argument that too many people were allowed to vote, which is not the indictment of a free and fair election that proponents seem to think it is.