At first, it seemed allegations of electoral fraud might do the trick. Trump and his lawyers blanketed the airwaves with outlandish claims about fraud at the polls. But when the Trump legal team made their case to the Pennsylvania legislature, their efforts struck Diamond as unconvincing and frankly incompetent. If there was no fraud, how could they justify overriding the will of the voters?
Luckily for Diamond, an obscure conservative law professor had recently said in testimony that state legislatures didn’t need evidence of fraud to disregard the will of the people. It was enough, Professor John Eastman said, that the legislature objected to the rules under which the election was conducted. After watching Eastman’s testimony, Diamond decided Eastman was just the man to help him write a resolution purporting to nullify the will of his state’s voters.
“Honestly, the Trump legal team was not exactly stellar at PA's hearing, failed to provide the affidavits of their witnesses, and made a glaring error by purporting that more ballots had been returned than mailed out,” Diamond admitted in an email to Eastman. “It is for this reason that I latched onto your comments that actual fraud is irrelevant when the election itself is unlawful.”
Diamond sent Eastman a draft resolution predicated on Eastman’s crackpot theory that the US Constitution gives state legislatures the unchecked power to disenfranchise their own voters after the fact if legislators don’t like the results of an election.
Eastman praised Diamond’s efforts but urged his protegé to go still further and actually name Trump electors in the resolution, as opposed to simply announcing their intent to do so.
“One big question, though. Do you want to only go half way, and require another resolution to actually choose a slate of electors? Or should you do it all in one resolution?,” Eastman wrote. “I don't know the dynamic of your Legislature, so can't answer that. But my intuition is that it would be better to do what you need to do in one fell swoop.”
The Pennsylvania Secretary of State and the courts had made some tweaks to facilitate voting during the pandemic. Republicans challenged these changes in court and lost. But Eastman promised that these changes could give the Pennsylvania legislature the excuse it needed to throw out the election, even without any evidence of fraud.
Eastman argued that it would be more politically palatable if the legislature could claim that the new rules cost Trump the election and they as legislators were simply righting that wrong by nullifying the election and replacing Biden’s electors with Trump’s.
Knowing that the mail-in vote favored Biden, Eastman suggested that the legislature pass a resolution arbitrarily declaring a certain percentage of perfectly legal mail-in ballots to be illegal based on a convoluted formula Eastman made up.
That way, Eastman said, the legislature could claim Trump won. “That would help provide some cover,” he asserted. (In fact, Trump would still have lost under Eastman’s metric, but that’s beside the point.)
Ultimately, Pennsylvania state legislators did not pass a resolution openly nullifying the results of their state’s election and naming alternative electors. Instead, at the urging of Trump’s legal team, Pennsylvania Republicans secretly named a slate of pseudo-electors, as did Republicans in six other states that Biden won.
The threat of an Eastman gambit has not passed.
If anything, it has gotten worse.
Republicans who take Eastman’s arguments seriously are gaining ground in state legislatures and key election administration posts.
The GOP may retake the House and Senate this year, which could put GOP legislators in charge of certifying the next presidential election.
A bolder state legislature could still attempt the Eastman gambit in 2024. A GOP-controlled Congress might agree to count the illegitimate electors chosen by politicians, instead of those chosen by the people.
That is why Congress must reform the Electoral Count Act to specify that if there are two slates of electors claiming to represent a state, Congress must only count electors courts have affirmed as legitimate.
