Matthew A. Seligman
@Matt_Seligman
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Fellow at Constitutional Law Center @StanfordLaw . Partner at Stris & Maher @StrisMaher . Author of “How to Steal a Presidential Election”, out Feb. 13, 2024.
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Joined February 2012
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Pinned Tweet
I’m pleased to announce my new book, co-authored with
@Lessig
, is forthcoming on February 13, 2024 with
@YalePress
: How to Steal a Presidential Election.
The book explores the strategies to steal a presidential election through manipulating the law.
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This is extraordinarily promising: "The slate of electors deemed the legitimate one by the federal courts is conclusive." If Congress ultimately enacts legislation like this, then the greatest threats to the subversion of American presidential democracy can be averted.
This could be a huge step toward thwarting a 2024 coup. Senators negotiating fixes to the Electoral Count Act are mulling reforms that would make it harder to corrupt certification of electors at the state level, sources tell me. That's absolutely crucial.
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@JesseFFerguson
What I really want to know is: who are the 6% of Democrats who think Trump is a better president than Lincoln?
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"Luttig is a conservative legal giant who was on the short list to be a Supreme Court justice for a decade,” Seligman told me. “There is no one whose view matters more in defining ECA reform as in keeping with conservative principles.”
@ThePlumLineGS
instantly grasped the stakes and imperative of bipartisan reform of the Electoral Count Act.
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Thanks to co-counsel
@Edanyaperry
, Fred Wertheimer,
@StantonLaw
, and Torie Feldman on this important brief in this critically important--and direly overlooked--Supreme Court case on Section 1512(c)(2), the statute that makes it a crime to obstruct an official proceeding.
The law is unequivocal: obstructing an official proceeding is illegal. A current Supreme Court case has serious implications for Trump's Jan 6 case.
I filed an amicus brief alongside co-authors
@Matt_Seligman
Fred Wertheimer
@StantonLaw
& Torie Feldman.
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“The areas of consensus, Collins said, include amending the Electoral Count Act.”
I know there are so many more visceral issues that demand our attention every day.
But I truly believe that this matters more than all of the others.
NEW: Senate bipartisan group is close to a deal on new laws to prevent stolen elections, per two sources.
They met tonight.
COLLINS said it “went very well.”
They’re eying a deal “this week.”
Details on what they’ve agreed to and what issues linger 👇
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An important new piece from
@ThePlumLineGS
. Doug Mastriano, the GOP candidate for Governor of Pennsylvania, gives shape to the coming Crisis of 2024: a rogue governor submits a bogus slate, and the GOP House votes to accept it. That's all it takes.
Trump's alarming GOP primary wins have crystallized the threat, dramatically strengthening the case for Electoral Count Act reform.
“All Trump needs to throw out American democracy is one governor and a majority in the House,"
@ChrisMurphyCT
tells me:
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Details about the Electoral Count Reform Act of 2022:
This summary outlines an effective bill to protect the process of counting electoral votes from manipulation by politicians in state or federal government. Here's how:
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...The Court should reject that unwarranted interpretation to hold that Section 1512(c)(2) applies to all conduct that corruptly interferes with official proceedings."
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ECA reform started two years ago as a quiet and little-noticed project to fix the most catastrophic weaknesses of our legal framework for electing presidents.
Thank you to
@ThePlumLineGS
and all the other dogged journalists who shined a light on the need for action.
A huge deal: Electoral Count Act reform has made it into the omnibus! Don't overlook this key point: By supporting ECA reform, Senate Republicans are essentially admitting that just about everything the 1/6 committee documented about Trump's coup is true:
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@JRubinBlogger
with an incisive piece about the Eastman disbarment. Here’s me:
"Matthew Seligman, who appeared as an expert witness for the California bar, tells me, ‘The judge’s decision found that Eastman’s conspiracy theories about voter fraud lacked any basis in fact…
This is big deal: “The evidence clearly and convincingly proves that Eastman and President Trump entered into an agreement to obstruct the Joint Session of Congress by unlawfully having Vice President Pence reject or delay the counting of electoral votes”
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Our conclusion:
"Petitioner’s proposed evidence impairment interpretation of Section 1512(c)(2) thus improperly excludes corrupt obstructive conduct that indisputably falls within the statute’s scope....
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Great column by
@ThePlumLineGS
in
@washingtonpost
discussing my essay debunking the theory that the VP can unilaterally reject electoral votes. As he notes, it's critical that conservative legal scholars and lawyers--including Pence's advisors--publicly renounce it.
The crazy legal theory concocted for Trump's coup attempt is still alive, and we need to kill it for good. The coup memo author hasn't renounced it, and neither has Claremont. But a great new analysis drives a stake into its heart. We must bury it forever:
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At
@just_security
,
@NormEisen
@JoshuaGKolb
and I have an updated analysis of the timing of Trump’s presidential immunity appeal.
Bottom line: the trial will probably end *just* before Election Day.
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Mr. Book knows what he’s talking about.
Mr. Book just finished this, gave it an A+ and inducted it into the Hall of Fame.
Mr. Book’s total for the year: 151.
Total for the month: 39.
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That's legally incorrect. But it tells us that if Mastriano is in the governor's mansion, he won't submit a slate of electors for the Democratic nominee, regardless of the real results of the election. Under the existing Electoral Count Act, that would be catastrophic.
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Me in
@washingtonpost
on whether President Trump "corruptly" obstructed the electoral count, which would be a federal felony under 18 USC § 1512(c)(s).
I think there is a strong argument the "corruptly" requirement is satisfied. Here's why:
Legal experts explain here how Trump acted "corruptly."
"He was trying to use conspiracy theories about election fraud as a basis to try to undermine the results of the electoral count. That is intent to subvert the integrity of an official proceeding.”
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“Good twigs.” These are the sorts of words of affirmation that keep me going. Thanks,
@ratemyskyperoom
!
Strong plant work. Nice cube shelves. Good twigs. Clock. Add more books/bookends. 9/10
@Matt_Seligman
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Talking with
@TaraSetmayer
and
@TheRickWilson
at the top of the hour!
Was Jan. 6 a Republican dress rehearsal for '24?
@Matt_Seligman
joins
@TaraSetmayer
and
@TheRickWilson
to break down the Electoral Count Act. Is it enough to stop them? Find out tonight at 7 pm Eastern on The Breakdown:
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Here's
@marceelias
with concerns about the Electoral Count Reform Act.
He's an important figure in election law whose views warrant taking seriously.
In short: he's misread two key provisions of the bill.
A thread on where we agree, where we disagree, and where we go from here
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Law students rejoice. Every casebook publisher should do this. *Must* do this.
During remote instruction, some publishers are making electronic casebooks available. Stay tuned here for more information! 📚😀📚
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The key principle animating ECA reform is that no politician, of any party, in state or federal government, should have the power to manipulate the counting of electoral votes. The people's votes, fairly counted, must determine the appointment of electors.
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A solid start to my
@ratemyskyperoom
career!
I heard from
@WajahatAli
that
@LEGO_Group
was the key to a 10/10. Next time I'll add more to the
@lincolnmemorial
I have here.
Great chair/pillow. Love the bookends. Art. Nice floor. Lower camera slightly/reframe. 9/10
@Matt_Seligman
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And here is the final stand. The President asserts that the Vice President has authority (presumably unreviewable) to determine which electoral votes count. This is dangerously incorrect, and it's worth going into detail about why. A thread:
The Vice President has the power to reject fraudulently chosen electors.
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@NormEisen
with thoughtful criticism of the bipartisan Senate group's proposed Electoral Count Reform Act.
We both agree that ECA reform is absolutely necessary. We also agree (I think) on its central goal: preventing partisan manipulation of the electoral count.
My thoughts:
1/x Do we need Electoral Count Act reform? Of course & I have long said so👇
I’ve reviewed the Senate proposals & have thoughts. Here’s a thread in my personal capacity. This is a first reaction so please say so if you disagree w/ any of the following.
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Time is short, but all signs point towards Congress passing the ECRA as part of the omnibus bill.
It’s been out of public view for months, but safeguarding presidential elections from legal manipulation remains monumentally important.
@ThePlumLineGS
with the inside story.
@TPM
A big reason for optimism: It's unlikely Schumer would have announced ECA reform will be on the omnibus if Mitch McConnell hadn't privately indicated his assent, people close to the process tell me. I gamed some of this out here:
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The Electoral Count Reform Act is now law.
Biden signs $1.7 trillion government funding bill to avoid a shutdown. The bill includes more emergency aid for Ukraine and natural disaster relief.
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The bipartisan Senate group's emerging framework appears to take this challenge head on, and it seems the group recognizes the risks of manipulation by state politicians as well as Congress. That's crucial.
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The great
@GregTSargent
and I talk about the continued willingness of the MAGA wing of the Republican Party to use legal loopholes to overturn the legitimate results of a presidential election.
An alarming pattern:
*JD Vance endorses Trump's fake electors scam
*Texas threatens to defy fed gov
*Rs rally behind Texas
*Nikki Haley says states can secede
Today's pod digs deep into GOP antimajoritarian radicalism with
@Matt_Seligman
.
Listen👇
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Me quoted in
@PostOpinions
by
@ThePlumLineGS
&
@paulwaldman1
:
“'Jacobs’ testimony strongly suggest[s] that Eastman knew at the time that the legal positions he was pushing were frivolous, and he did it anyway,' legal scholar Matthew Seligman, an expert on the ECA, told us.
An underappreciated aspect of Trump's coup effort centers on his pressure on Pence to violate his official duty. Pence's counsel has now offered new evidence suggesting Trump/his allies fully understood this is what they were doing.
@paulwaldman1
and me:
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Because if presidential elections can be manipulated and subverted, then every other issue that you care about cannot be addressed through the democratic process.
Guns, immigration, housing, health care, climate change, crime, free speech, foreign policy, and on and on and on.
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They are, indeed, candlesticks.
Seeking art recommendations from
@ratemyskyperoom
and other art experts on Twitter.
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As I've written in my Realistic Risk Assessment of the Presidential Election of 2024, the array of political control of Congress and governorships makes state-level manipulation a far more likely--and therefore graver--threat than manipulation by Congress.
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Still: it is enormously encouraging that principled legislation in defense of democracy is politically possible. ECA reform could represent the most momentous step to safeguard presidential democracy in a generation or even a century. And we are so, so close.
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My new analysis of the realistic risks of ECA manipulation in 2024 covered by
@ThePlumLineGS
. Bottom line: the House and a swing state governor acting together can do as much damage as the two chambers of Congress. And I'm very, VERY worried about a governor going rogue.
New
@ThePlumLineGS
: Opinion | What would a 2024 Trump coup look like? A new paper offers a worrying answer.
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This is false, and the sort of disinformation I testified about yesterday in the House
@Weaponization
Committee hearing.
Mackey was not prosecuted for “making memes that made fun of Hillary Clinton.” He was prosecuted for conspiracy to deprive people of their right to vote.
BREAKING: NYC jury finds Douglass Mackey GUILTY in first-ever meme trial for making memes that made fun of Hillary Clinton in 2016.
If you want justice, avoid New York like the plague.
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In sum: the Constitution does not grant the VP power to reject electoral votes unilaterally. The President is wrong on the law. And what's even more clear: he's explicitly rejecting democracy.
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The bottom line: this week's primary elections vividly presage the coming Crisis of 2024, and why Congress absolutely must pass a new and strengthened Electoral Count Act.
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It came down to the very last minute, but the Senate omnibus bill includes the
#ElectoralCountReformAct
.
This is a monumental achievement to reduce the catastrophic risks of a stolen presidential election through political manipulation of the electoral count.
Thank god.
Our bipartisan group worked tirelessly to draft this legislation that fixes the flaws of the archaic and ambiguous Electoral Count Act of 1887 and establishes clear guidelines for our system of certifying and counting electoral votes for President & VP.
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My first 10/10 from
@ratemyskyperoom
!
And my book with
@lessig
, How to Steal a Presidential Election, is out this Tuesday, February 13.
Use code Y24STEAL to get 30% off your pre-order at .
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As
@ChrisMurphyCT
explains, “All Trump needs to throw out American democracy is one governor and a majority in the House,” Murphy told me. “He’s arguably very close to that arrangement.”
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Thoughtful response from
@marceelias
. I’m optimistic that we can work together to make sure that the Electoral Count Reform Act works how we all want it to: to protect the integrity of presidential elections in 2024 and beyond.
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The reason is the rogue governor. Under the existing ECA, the governor's certification carries enormous legal weight: if there are multiple competing slates of electors, and the chambers of Congress disagree on which one to count, the governor breaks the tie.
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ECA reform *is* tackling election subversion. The vulnerabilities in the ECA are a primary mechanism for election subversion, *especially* by state officials. It doesn’t solve everything, but it solves a whole lot.
@rickhasen
If all they’re willing to do is reform the Electoral Count Act, and not tackle election subversion, intimidation of election workers, attempts to remove election officials, it will be a white wash.
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That creates a catastrophic risk of manipulation through the Governor's Gambit, as I've written in Disputed Presidential Elections and the Collapse of Constitutional Norms (pages 46-49):
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The bipartisan Senate group's framework appears to fix this problem, by binding Congress to count only those electors deemed conclusive by a court-not by a state politician, and not by Congress itself. If the legislation reflects this principle, the Governor's Gambit is defanged.
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@MattBruenig
The ECA, 3 USC 11, requires that duplicates be sent to the Archivist, the state Secretary of State, and a federal judge in the district in which the electors met.
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Under the existing ECA, the rogue governor can manufacture competing slates of electors by sending in her own bogus certification and, with the partisan House as an accomplice, break the tie between the competing slates herself. And thus steal the State's electoral votes.
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So much will depend on the details of the legislative text, so we'll have to wait and see. It's profoundly challenging to craft this legal process in a technically sound manner. So stay tuned.
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I spoke with
@ThePlumLineGS
:
“'This proposal effectively constrains both state officials and Congress to count the true electors,' legal scholar Matthew Seligman, an expert on the ECA, tells us."
We did a close read of the new ECA reform bill:
*Bars states from appointing electors in defiance of their own laws
*If states ignore, judicial review kicks in and Cong must count right electors
Key: It stops subversion of electors at state level. More:
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My google doppelgänger has died of COVID-19. He was the other Matthew Seligman, another musician and lawyer. We crossed paths a few times due to mistaken email addresses. He was always kind and understanding. Do not ask for whom the bell tolls, and rest in peace.
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This morning, I testified in the House
@Weaponization
Select Subcommittee on the dangers of misinformation spreading unchecked on social media.
Election misinformation undermines Americans' trust in the legitimacy of our elections, striking at the core of our democracy.
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This is enormously consequential.
Sen. Chuck Grassley is the 10th GOP co-sponsor of the Senate's bipartisan Electoral Count Act reform bill, his office confirms. If all Dems in favor, that gives it a filibuster-proof Senate majority
Collins: "I'm excited about that. And I think there is other Republican support"
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Here's how: a rogue governor ignores the legitimate vote tally, and sends in a bogus slate of electors instead. Congress is divided, with one chamber (likely the sensible Senate) counting the legit slate while the other (likely the partisan House) counting the bogus slate.
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Amen.
Please welcome those who are rejecting the president's baseless voter fraud accusations, from wherever they come from and whatever they've said in the past.
We need this country united behind election integrity and counting all the valid votes.
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…and his radical plan for Vice President Pence to throw out electoral votes lacked any basis in law or history.’ Seligman added, ‘By recommending his disbarment, the decision reaffirms that lawyers may not conspire with their clients to undermine the rule of law.’”
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Now that incumbent Brian Kemp is shellacking Perdue, our nation turns its lonely eyes to Pennsylvania. As
@ThePlumLineGS
notes, Mastriano has claimed that the Constitution gives the legislature the power to disregard the results of the popular election if it is "compromised."
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The bipartisan Senate working group on modernizing the ECA recognizes that the challenge is to “make it harder *both* for a governor to send a false certification to Congress, *and* for Congress to overturn a state certification," as
@ChrisMurphyCT
put it.
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@jamalgreene
Also probably the most exceptional teacher I’ve ever had. (And I’ve been blessed with amazing teachers.)
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@MattBruenig
And the historical context is illuminating: the ECA was passed not long after the Civil War, and Congress was concerned that sectarian militias might seize and destroy the certificates en route to Congress. That's why two of the duplicates are sent to locations not in DC.
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In a time when so much of our politics is polarized, Senators of both parties have come together to put the interest of the nation, and democracy itself, above all else. Congress must pass the Electoral Count Reform Act of 2022.
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It's incredibly encouraging that the bipartisan Senate working group sees that the risks of election manipulation exist both in Congress and in state government, and that it's working towards preventing politicians in either from wreaking havoc in 2024 and beyond.
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In sum, this is extraordinary and historic legislation. We'll have to wait on the final legislative text, but from what we have seen the bipartisan group of Senators has crafted a bill that effectively protects the process of counting electors.
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“The Twelfth Amendment changed this design. It converted the electoral college into a form of public election, facilitating organized political competition for the presidency and linking the office to popular majorities.”
From a really insightful 2014 law review article. Kicker:
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As the House Administration Committee releases a staff report, “The Electoral Count Act of 1887: Proposals for Reform,” I’ve finally posted my article on the issue: “Disputed Presidential Elections and the Collapse of Constitutional Norms.”
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At this point, to be perfectly frank, the only real reason *not* to fix the Electoral Count Act is if you want to preserve its vulnerabilities to exploit later. Let that sink in. That’s the *only* real reason.
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(ii) But more importantly,
@marceelias
and I agree on what we want! So how about this: let's add another sentence that says "The governor's certificate shall not be treated as conclusive in any suit in any court."
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So if a governor goes rogue, and defies a court order to submit the legitimate slate of electors, Congress *cannot* count the governor's bogus slate anyway!
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The Supreme Court has never interpreted § 1512(c)(2) But it *has* interpreted§ 1512(b), which also uses the word "corruptly," in Arthur Anderson LLP v. United States. The accounting firm was charged with shredding documents related to the Enron scandal.
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When I posted that analysis a few months ago, it looked like Georgia would be ground zero in 2024 because the former Senator David Perdue is running for governor on the platform that he wouldn't have certified Biden's electors in 2020.
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Second, and *crucially*, it prevents that state official from going rogue and submitting his own preferred, bogus slate instead of the legitimate slate.
How? By providing for judicial review in federal courts, with expedited review to the Supreme Court.
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If the former President was dishonestly subverting the electoral count, because he know the election fraud conspiracy theories were a fraud? You tell me whether that's a felony under these precedents.
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What's clear, I hope, is that the ECRA is a *massive* improvement over the status quo. I think it's our last best hope. I just wrote more about why in
@Slate
:
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We also agree that the gravest threat of political manipulation of presidential elections arises from state officials. That hasn't been obvious to everyone; there has been understandable focus on January 6 itself. The objections by members of Congress, and the pressure on Pence.
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This article makes a serious legal error. It speculates that by stalling through repeated objections during Congress's session on January 6, the objectors could throw the presidential election to the House in what's called a "contingent election." That is absolutely incorrect.
Many Republican lawmakers have supported Donald Trump’s false claims of voter fraud. Legislators’ actions on January 6th will be the true test of their commitment to democracy.
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@nycsouthpaw
@chrislhayes
And the meta-disinformation churns out immediately:
This is false, and the sort of disinformation I testified about yesterday in the House
@Weaponization
Committee hearing.
Mackey was not prosecuted for “making memes that made fun of Hillary Clinton.” He was prosecuted for conspiracy to deprive people of their right to vote.
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The incredible group of amici we represented includes
@gtconway3d
,
@tribelaw
,
@RWPUSA
,
@shanlonwu
, Marc Agnifilo, Ty Cobb, John Farmer, Phil Lacovara, John McKay, Fern Smith, and Bill Weld.
Our brief:
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I mapped out exactly how this would go in "A Realistic Risk Assessment of the Presidential Election of 2024":
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First, on where
@marceelias
and I agree. Most importantly, we agree on the principle that courts and not politicians should have the ultimate decision on the legitimate results of elections. We both recognize that politicians are, by their very nature, partisan actors.
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(2) Role of the Vice President. This bill confirms that the VP's role is merely ministerial and ceremonial. This should put to rest, once and for all, the dangerous notion that the VP has the power to alter the electoral count.
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The election of 2020 and the calamitous events of January 6, 2021, were a clarion call for action to repair the catastrophic vulnerabilities in the Electoral Count Act of 1887. The bipartisan Senate group has answered that call to action.
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Thanks for the "highly recommended" review,
@lsolum
! Check out my recent paper, Personalized Choice of Private Law. I propose a new legal framework that empowers people to choose the private law rule that applies to them.
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§ 1512(b) imposes criminal liability on those who "knowingly...corruptly" persuade someone to do things that obstruct an official proceeding.
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@marceelias
has been litigating election cases for years, and those cases target *state* administration of elections. For my part, my scholarship identified the Governor's Gambit as the gravest threat under the existing ECA:
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(3) Higher Objection Threshold. Under current law, an objection by a single Senator and a single Representative triggers hours of debate. That's an invitation for political grandstanding, creating the false impression that there's a real dispute about the count when there is not.
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In other words, Congress *cannot* count electors that aren't submitted by the designated state official. No more "alternative slates"! And Congress *cannot* count electors submitted by a governor *in defiance of a court order*.
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And if the governor's slate is bogus, the federal court will order him to submit the legitimate one.
That judicial review is the surest and safest way to prevent manipulation of the state's slate of electors by the governor.
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Strong cosign of this
@rickhasen
piece in
@Slate
.
I hope people will heed his view--which I and many others echo--that this bill absolutely essential to pass even though it absolutely isn't everything that's needed.
My new one
@Slate
on the bipartisan bill to fix the Electoral Count Act: “The Collins-Manchin bill is both a deal Democrats should grab while they can and not enough to fully insulate our elections from the risk of subversion.”
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What did Mackey do? He distributed content on social media platforms, targeted at racial minorities, encouraging them to vote for Hillary Clinton via text message. Which is not a valid way to vote—but thousands of the people targeted didn’t know that.
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This post from
@Nedfoley
@rickhasen
@persily
@LisaManheimWA
and Rick Pildes is correct and important, for reasons I explained last night here:
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What this means: If a governor goes rogue and purports to submit a bogus slate of electors, then a lawsuit is filed in federal court. That federal court (with expedited review to the Supreme Court) will determine whether the governor's slate is the legitimate one or not.
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(And I go into granular detail on the strategies for manipulating the ECA and how to fix them in "Disputed Presidential Elections and the Collapse of Constitutional Norms": .)
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If we subtract the "knowingly" from "knowingly...corruptly": that seems to mean that "corruptly" means "dishonestly with the specific intent of subverting or undermining the integrity of an official proceeding."
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I have a new paper out in
@michlawreview
, "Moral Diversity and Efficient Breach." Here's the link:
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If you want to know what legal threats there are in the 2024 election—if you want to know what you should worry about leading up to January 6, 2025—check out my new book with
@lessig
:
How to Steal a Presidential Election
On sale now:
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The Supreme Court seemed (it's not entirely clear) to endorse defining that as “knowingly and dishonestly, with the specific intent to subvert or undermine the integrity" of the official proceeding.
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