The Washington Post reported on Friday that Ginni Thomas sent emails to Arizona elections officials asking them to set aside the will of the voters and submit a slate of fake electors who would support Donald Trump even after he lost the 2020 presidential election. Even though Justice Clarence Thomas has already decided several matters relating to the 2020 election and his spouse has written, there is nothing to be done about his refusal to reassign cases that affect his spouse.
There is a lot to be done about Supreme Court justices who don't want to be bound by federal recusal statutes. Unless and until there is a public appetite for reforms to the court, we will continue to watch this play out in silence, as though it is a special about the Tudors. The lessons from the tag-team efforts to seat a president who lost an election are more important than the reforms.
It is easy to dismiss the texts and emails from a sitting justice's spouse to public officials who have long-standing professional connections to that justice as crazy conspiracy theorizing. After the 2020 election, many insurrection enthusiasts were unable to marshal a single winning argument in an actual court of law. It is possible to look at the texts and emails that were sent around the highest levels of power and influence in the weeks after November 2020 as a warning and road map for the next presidential contest. Next time, the lawyers won't be sweating brown makeup or using crackpot theories of Italian election meddling.
The piece of legal advocacy that Thomas was emailing was a call for Arizona state officials to stand up for themselves in the face of political and media pressure. Our constitution gives you awesome authority. Please take action to ensure that a clean slate of electors is chosen for our state. It's actually a theory about the subversion of a presidential election. Her husband has endorsed it as a matter of constitutional law. It didn't work in 2020 because the legal and political structures weren't in place at the time. As we type this, those pieces are being put in place.
There were five votes at the Supreme Court in November of 2020 that supported the proposition that state legislatures could set aside election results they deemed questionable. When lawyer/insurrectionists John Eastman and Jeffrey Bossert Clark floated that notion at the White House, DOJ attorneys told them to go away. One of the lawmakers in Arizona is married to a state Supreme Court justice and has a godchild. The New Yorker reported that Bolick introduced legislation that would allow a majority of the legislature to overrule the popular vote and dictate the state's electoral college votes. Bolick is running for secretary of state, the office that oversees state elections.
The New York Times reported over the weekend on the proliferation of election-deniers seeking or holding office in states that will decide the winner of the presidential race. According to their tally, at least 358 sitting Republican legislators in swing states have used the power of their office to try to overturn the results of the 2020 presidential election. They can use this power to investigate voter fraud, refuse to certify the results of the election, and even try to approve a slate of electors for the loser. Two years ago, Ginni Thomas was pushing this, and her husband has already deemed it constitutionally permissible.
Will any of this work? The Thomases think it will. Clarence was promoting a constitutional theory that would lend legitimacy to a brazen coup when he was lobbying state legislators to overturn the results. The independent state legislature doctrine is a verifiably false, pseudo-originalist theory that allows state legislatures to ignore the real results and rig elections for Republicans. During the 2020 race, Thomas tried to void mail ballots in battleground states that favored Democrats. He peddled a sanitized version of the Big Lie, saying that mail ballots used to vote for Joe Biden are vulnerable to voter fraud. Whenever election law rulings help Democrats, he has continued to champion the theory. Richard Hasen has pointed out that it looks like the Supreme Court will decide this issue by the year 2024.
The work of Clarence Thomas has never been more obvious. Clarence fought to give state legislatures the authority to reject election results, but he was lobbied by Ginni. Clarence was handling the law and Ginni was working on the political side. They are not particularly subtle about it. If a Democrat is elected, red state officials will question the legitimacy of the results, just like in the 2020 coup attempt. This has nothing to do with liberals denying the feminist drive to have a separate and distinct political life apart from her spouse. She has more power. Two public actors are working together to ensure that red state legislatures decide future elections in lieu of voters.
The question is whether it will succeed. Like Trump's other allies, the Thomases developed their strategy too late and didn't buff out the crackpot edges until recently. They are putting in the work with plenty of time to spare. Americans will have the right to be furious and appalled if Republicans succeed in pulling off a coup. Clarence, Ginni, Eastman, Clark, and their many powerful friends are currently laying out the game plan, so no one will have an excuse to be surprised.
Listen to this episode of What Next to learn more about the role that Ginni Thomas played in efforts to overturn the 2020 election.
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