This former Ted Cruz advisor is trying to keep Republicans he once advised from stealing the 2024 election
Senator Ted Cruz speaking with attendees at the 2021 Young Latino Leadership Summit. (Gage Skidmore)

The Big Lie — the false and totally debunked claim that the 2020 presidential election was stolen from Donald Trump because of widespread voter fraud — continues to be aggressively promoted on the MAGA far-right, from MyPillow CEO Mike Lindell to Arizona gubernatorial candidate Kari Lake to Trump himself. Many Democrats have been warning that Trump and his allies, if left unchecked, will try to use the vagueness in the Electoral Count Act of 1877 to steal the 2024 presidential election. But some Trump critics on the right are sounding the alarm as well, and former Appeals Court Judge J. Michael Luttig has been advising GOP senators on the ECA.

Luttig, in an op-ed/essay published by the New York Times on Valentine’s Day 2022, makes a conservative argument for strengthening the ECA, addressing its vagueness and avoiding a MAGA power grab in the 2024 election. The former judge is well-known on the right, and Sen. Ted Cruz of Texas is among the Republicans he has advised along the way. But now, he finds himself at odds with Cruz and other Trump supporters when it comes to the Electoral College.

“The clear and present danger to our democracy now is that former President Donald Trump and his political allies appear prepared to exploit the Electoral Count Act of 1887, the law governing the counting of votes for president and vice president, to seize the presidency in 2024 if Mr. Trump or his anointed candidate is not elected by the American people,” Luttig explains. “The convoluted language in the law gives Congress the power to determine the presidency if it concludes that Electoral College slates representing the winning candidate were not ‘lawfully certified’ or ‘regularly given’ — vague and undefined terms — regardless of whether there is proof of illegal vote tampering.”

Luttig adds, “After the 2020 election, Republican senators like Ted Cruz of Texas and Josh Hawley of Missouri tried to capitalize on those ambiguities in the law to do Mr. Trump’s bidding, mounting a case for overturning the results in some Biden-won states on little more than a wish. Looking ahead to the next presidential election, Mr. Trump is once again counting on a sympathetic and malleable Congress and willing states to use the Electoral Count Act to his advantage.”

Trump, Luttig notes, has been slamming former Vice President Mike Pence for not “overturning” the 2020 election results — and Pence, standing up to Trump for a change, has responded that he is “wrong.”

“The back-and-forth repudiations by Mr. Trump and Mr. Pence lay bare two very different visions for the Republican Party,” Luttig observes. “Mr. Trump and his allies insist that the 2020 election was ‘stolen,’ a product of fraudulent voting and certifications of electors who were not properly selected. Over a year after the election, they continue to cling to these disproved allegations, claiming that these ‘irregularities’ were all the evidence Mr. Pence needed to overturn the results, and demanding that the rest of the GOP embrace their lies.”

Luttig goes on to say that this “fissure” in the GOP is “presenting an existential threat to the party in 2024.” And according to Luttig, strengthening the ECA would be beneficial for both of the United States’ two major political parties.

“Democrats, for their part, should regard reform of the Electoral Count Act as a victory — essential to shore up our faltering democracy and to prevent another attack like the one at the Capitol on January 6, 2021,” Luttig advises. “These are actually the worthiest of objectives. Republicans should want to reform the law for these same reasons, and more. Of course, some may never support reform of the Electoral Count Act simply because the former president has voiced his opposition to the efforts to revise it. But there are consequential reasons of constitutional and political principle for the large remainder of Republicans to favor reform in spite of the former president’s opposition.”

In an article published by Mother Jones on February 15, reporter Pema Levy stresses that Luttig now finds himself in strong disagreement with some Republicans who were clerks for him in the past — including Cruz and attorney John Eastman.

“In the lead-up to the January 6 insurrection,” Levy observes, “Luttig found himself pitted against Eastman. Trump was putting pressure on Vice President Mike Pence to delay certification of the election that day. One of his lawyers, John Eastman, was the architect of this insane legal strategy. He wrote a memo to Pence outlining his supposed authority to stop the certification of Biden’s win. Under pressure, Pence turned to Luttig for advice, and Luttig refuted Eastman. When Pence announced on January 6 that he would not interrupt Congress’ counting of the electoral votes, he quoted Luttig.”

Luttig, in his Times op-ed/essay, argues that because Republicans and conservatives favor “limited federal government,” it “should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington.”

The conservative ex-judge warns, “It is hardly overstatement to say that the future of our democracy depends on reform of the Electoral Count Act…. Come to think of it, the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.”