On Friday, the Washington Post broke the news 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 demonstrably lost the 2020 presidential election. The news barely caused a ripple because there is seemingly nothing to be done about Justice Clarence Thomas’ refusal to recuse in cases that materially affect his spouse, even as he has already decided several matters surrounding the 2020 election … and also because that same spouse had written far more inflammatory, QAnon-style texts to Trump’s chief of staff urging him to set aside the 2020 contest, and nothing was done about that either.
In reality, of course, there is plenty to be done about Supreme Court justices who decline to be bound by federal recusal statutes and judicial ethics canons. But unless and until there is a ravenous public appetite for reforms to the court, we will continue to watch this play out in mute horror, as though it’s a Netflix special about the Tudors, and the only recourse we have is to return to our mutton farming. Reforms aside, there is another more crucial lesson from the Thomases’ tag-team efforts to seat a president who lost an election: What’s past is prologue, and what was done sloppily in 2020 is being mapped out by experts for 2024.
It’s easy to dismiss the demented texts and emails from a sitting justice’s spouse to public officials who have long-standing professional connections to that justice as zany conspiracy theorizing. Ginni Thomas can be lumped into the QAnon weirdos bucket with Cleta Mitchell, Sidney Powell, Rudy Giuliani, and Mike Lindell—hapless insurrection enthusiasts who were unable to marshal a single winning argument in an actual court of law after the 2020 election. But the other way to look at the texts and emails that were pinging around the highest echelons of power and influence in the weeks after November 2020 is as a warning and road map for what is already being put into place for the next presidential contest. But next time, the lawyers won’t be sweating brown makeup or referencing crackpot theories of Italian election meddling.
What Thomas was emailing was a prefabbed piece of legal advocacy that urged Arizona state officials to “Please stand strong in the face of political and media pressure. Please reflect on the awesome authority granted to you by our constitution. And then please take action to ensure that a clean slate of electors is chosen for our state.” That isn’t just words. It’s actually a theory underlying the subversion of an entire presidential election. It’s also a theory her husband has endorsed as a matter of constitutional law. It didn’t work in 2020 because the legal and political structures to support it weren’t in place at the time. Those pieces are being put into place as we type this.
Recall, for instance, that back in November of 2020, it wasn’t clear there were five votes at the Supreme Court to support the proposition that state legislatures could simply set aside election results they deemed tainted by impropriety. Recall that when lawyer/insurrectionists John Eastman (a Thomas clerk) and Jeffrey Bossert Clark floated that notion at the White House and elsewhere, serious DOJ attorneys told them in no uncertain terms to go away. Recall finally that one of the lawmakers in Arizona, Shawnna Bolick, is married to a state Supreme Court justice and is parent to Clarence Thomas’ godchild. Bolick, as Jane Mayer of the New Yorker reported in 2021, later introduced legislation that “would enable a majority of the legislature to override the popular vote … and dictate the state’s electoral college votes itself.” In other words, what Bolick couldn’t lawfully do in 2020 is a thing she hopes to do under color of law in future. Oh, and Bolick is now running for secretary of state, the office that oversees state elections.
The New York Times reported this weekend on the proliferation of Bolick’s fellow travelers: election-deniers seeking or holding office in states that will decide the winner of the 2024 presidential race. According to their tally, at least 357 sitting Republican legislators in swing states “have used the power of their office to discredit or try to overturn the results of the 2020 presidential election.” That number amounts to “44 percent of the Republican legislators in the nine states where the presidential race was most narrowly decided.” Moreover, election deniers around the country are running for secretary of state and attorney general—vying to be swing states’ top election officer and top cop, respectively. If successful, they can use this power to aggressively investigate bogus claims of voter fraud, attempt to nullify Democratic ballots, refuse to certify the true results, and even try to approve an “alternative” slate of electors for the loser. This is what Ginni Thomas was pushing two years ago, and what her husband has already deemed constitutionally permissible.
Will any of this work? The Thomases clearly think it will. At the same time Ginni was lobbying state legislators to overturn the results, Clarence was developing and promoting a constitutional theory that would lend legitimacy to just such a brazen coup. The justice has become an avid fan of the “independent state legislature doctrine,” a verifiably false, pseudo-originalist theory that allows state legislatures to ignore the real results and rig elections for Republicans. Thomas repeatedly deployed this theory during the 2020 race in an effort to void mail ballots in battleground states (which disproportionately favored Democrats). He later peddled a somewhat sanitized version of the Big Lie, falsely asserting that mail ballots—specifically, those used to elect Joe Biden in 2020—are highly susceptible to voter fraud. Ever since, he has continued to champion the theory whenever lower courts’ election law rulings happen to help Democrats. As our colleague Richard Hasen has pointed out, it looks increasingly likely that the Supreme Court will decide this issue by 2024.
The symmetry between Ginni and Clarence Thomas’ work has never been more obvious. While Clarence fought to give state legislatures the constitutional authority to reject election results, Ginni lobbied state legislators to do exactly that. A casual observer might assume they were working in tandem, with Clarence handling the law and Ginni working on the political side. They aren’t particularly subtle about it. You need only read Ginni’s emails and Clarence’s opinions to see exactly how the 2024 coup attempt will go down because it’s identical to the 2020 coup attempt: If a Democrat prevails, red state officials will question the legitimacy of the results, giving state legislatures an opportunity to throw them out and declare the Republican to be the real winner. This has nothing to do with liberals squelching Ginni Thomas’ feminist drive to have a separate and distinct political life apart from that of her spouse. More power to her. This has everything to do with two public actors working together to ensure that red state legislatures decide future elections in lieu of the voters.
The question remaining isn’t whether it’ll happen; the question is whether it’ll succeed. The Thomases tried this approach in 2020, but like Trump’s other allies, they developed their strategy a bit too late and didn’t buff out the crackpot edges until recently. But this time they’re putting in the work with plenty of time to spare. If Republicans succeed in pulling off a much more respectable coup in 2024, Americans will have every right to be furious and appalled. But no one will have any excuse to be surprised, because Clarence, Ginni, Eastman, Clark, and their many powerful friends are currently laying out the game plan right before our eyes.