The official Trump attitude towards the Electoral Count Act was expressed forcefully by Trump advisor John Eastman, whose infamous memos laid out a strategy for an election coup in the fateful days leading up to January 6. According to Eastman, the statute is unconstitutional on two separate grounds. First, he claimed, its provisions for counting electoral votes violate the 12th Amendment’s unconditional grant of authority to the vice president to deal with electoral votes however they want. Second, Eastman echoed the repeated arguments of Trump’s lawyers that the ECA’s state certification procedures violates the absolute and exclusive power of state legislatures to regulate both federal elections and the choice of presidential electors under Article I of the Constitution.
It seems unlikely that the president who once said, “I have an Article II, where I have the right to do whatever I want as president,” has the beginning of a clue regarding the constitutional arguments of his own lawyers. Nevertheless, the radical argument for the unconditional powers of the vice president and state legislatures that Eastman advanced is official MAGA gospel. The first argument will likely be dropped by Republicans in 2025 if there is a contested election, since Kamala Harris will be sitting in the same seat occupied by the perfidious Mike Pence in 2021. But the second argument, that Republican-controlled state legislatures can overrule governors, election officials, and even voters in determining election outcomes could still be in play.