Erwin Chemerinsky: How new House Speaker Mike Johnson tried again and again to overturn Biden’s election

In less than 15 months, Congress will count and certify the votes from the electoral college. It is truly frightening that House Speaker Mike Johnson, R-La., from the far right of the Republican Party, might have a prominent role in the process.

If Republicans keep control of the House in the November 2024 elections, it seems likely they will keep Johnson as speaker given their bitter divisions and difficulty in selecting someone for the position after Kevin McCarthy’s ouster. Johnson was the primary proponent in the House of a way to overturn the 2020 election and keep Donald Trump in the presidency. He can be expected to do the same in 2024 if Trump is the Republican nominee and loses to President Joe Biden.

Johnson, a lawyer, led the House Republicans in promoting a baseless legal theory that state legislatures have sole power to select and appoint electors. This so-called “independent state legislature” theory maintains that a state legislature can allocate its electors however it wants, regardless of the popular vote and a law that requires that electors go to the presidential candidate who won the popular vote. The hope was that Republican-controlled legislatures in states won by Biden would allocate their electors to Trump and give him the presidency. This theory was rejected by the Supreme Court in June in Moore v. Harper.

Every court to consider any of the legal claims of Trump and his supporters like Johnson — whether state or federal judges, whether Democratic or Republican judges — found no basis for overturning the decision of the voters and the electoral college. None found evidence of voter fraud that would affect the outcome of the election, which Biden won by a huge margin.

Johnson, however, did all he could to promote false claims about the election process. He was a leader in supporting a lawsuit by Texas to have the Supreme Court decertify election results in four states won by Biden: Georgia, Michigan, Pennsylvania and Wisconsin.

He argued that state officials had changed aspects of their election procedures, such as by making it easier to cast absentee ballots, before the November 2020 election. Johnson claimed these changes were invalid and therefore no electors should be counted from these states. Courts consistently upheld these changes by state election officials as necessary during the COVID-19 pandemic.

Johnson even circulated an email asking his Republican colleagues to sign on to the amicus brief in the Supreme Court supporting the state of Texas’ lawsuit and the suppression of electoral votes from four states. Johnson said in the email that Trump “specifically asked me to contact all Republican Members of the House and Senate today and request that all join on to our brief.” He added, ominously, that Trump “said he will be anxiously awaiting the final list to review.”

More than 100 House Republicans signed the brief. Law professor John Eastman filed a brief for Trump in the Supreme Court advancing this same unfounded theory. Eastman is now facing possible disbarment in California for his role in trying to undermine the election and has been indicted in Georgia on charges of trying to overturn election results in that state.

The Supreme Court quickly rejected the Texas lawsuit. In a brief opinion, the court explained that Texas had no basis to sue to block the ability of other states to participate in the electoral college.

Undaunted, Johnson tried to get the House to refuse to certify the results of the election. He and 138 other Republican members voted against certification on Jan. 6, 2021, despite Biden winning the popular vote by more than 7 million votes and decisively winning in the electoral college.

Johnson repeatedly spread Trump’s false claim that the election was rigged. He said in a radio interview that a software system used for voting was “suspect because it came from Hugo Chávez’s Venezuela.” He declared, “You know the allegations about these voting machines, some of them being rigged with this software by Dominion, there’s a lot of merit to that.”

Now that Johnson is House speaker, there is no telling what he will do to undermine the election should Trump become the GOP nominee. Given his extreme loyalty to Trump and his efforts to spread outrageous lies and to nullify the 2020 election, the peril for the democratic process is very great.

Erwin Chemerinsky is a contributing writer to the Los Angeles Times Opinion section and the dean of the UC Berkeley School of Law. His latest book is “Worse Than Nothing: The Dangerous Fallacy of Originalism.”

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