The last time America elected a president, it led to a deadly assault on the U.S. Capitol and a failed coup that gravely damaged the political system and marred the peaceful transfer of power for the first time in U.S. history.
A year from now, the nation’s voters will decide another presidential contest — likely one that pits the same two candidates against each other.
Despite a slew of arrests and felony convictions stemming from the events of Jan. 6, 2021, there’s little sign that those who attacked democracy last time have significantly moderated their outlook.
Former President Donald Trump has warned that, if restored to power, he’ll seek retribution against his enemies. An unrepentant election denier runs one house of Congress. Threats of political violence, now commonplace, are said to have affected key voting decisions made by elected officials. And 3 out of 4 respondents to a recent poll think American democracy is at risk in the election, with nearly a quarter saying patriots may have to use violence to save the country.
“The United States electoral process, and indeed American democracy itself, is under great stress,” warned a September report by a group of election experts for the Safeguarding Democracy Project. “No longer can we take for granted that people will accept election results as legitimate.”
Since the tumult of January 2021, politicians, advocacy groups, and media outlets have rightly warned about a range of threats to a free and fair 2024 election — from problems with voter access and election administration to the potential for violence and chaos, or outright subversion of results, in the post-election period.
Perhaps less noticed has been the progress made toward shoring up the system — chiefly in the form of federal legislation making it harder to subvert a presidential election.
That’s why, with a year before voting culminates next November, it’s crucial to take stock of where the nation stands, and to identify where, in the view of election experts and voter advocates, the major vulnerabilities remain.
Election subversion
Perhaps the fear that looms largest in many observers’ minds is a repeat in some form of the failed, multi-pronged plot to overturn the election that culminated with the Jan. 6, 2021 attack — but one that succeeds this time.
For some, the recent ascension of Rep. Mike Johnson, R-La., to the role of speaker of the House adds to the sense of anxiety.
The New York Times has called Johnson “the most important architect” of congressional Republicans’ objections to the 2020 election results. Soon after the election, Johnson rallied 125 other GOP representatives to sign a legal brief arguing that President Joe Biden’s win should be overturned.
The Louisiana Republican then led the effort to get Republicans to refuse to certify the results, and he voted against certification in Arizona and Pennsylvania.
Johnson has never expressed regret for his role in the bid to overturn the results, or acknowledged that Biden was the legitimate winner.
“Johnson’s record on democracy is overtly dangerous, and his newfound power presents an acute threat to American elections,” an Oct. 26 email from a Democratic group of chief election officials, the Democratic Association of Secretaries of State, warned reporters.
There’s little doubt that having a leading election denier running the House is damaging to U.S. democracy in myriad ways — not least by further mainstreaming a dangerous ideology.
But, asked at an Oct. 25 news conference whether he was afraid that Johnson would try to overturn the election, Biden answered: “No.”
“Just like I was not worried that the last guy would be able to overturn the election,” Biden continued. “They had about 60 lawsuits and they all went to the Supreme Court and every time they lost. I understand the Constitution.”
Election law experts largely agree, noting that the speaker has no formal role in the certification process. And, they point out, it takes a full vote of both chambers to actually reject electoral votes — making it highly unlikely to succeed. For all the justified concern about what happened in 2020, no objection to a state’s electoral votes got more than seven votes in the Senate.
As important, experts say, the Electoral Count Reform Act, approved last year in response to Jan. 6, makes it all but impossible for Congress to overturn an election, no matter who’s in charge.
“The ability of Congress to interfere in the certification of a presidential election was already limited,” said Adav Noti, senior vice president and legal director of the Campaign Legal Center, which helped push for the ECRA. With the reform in place, Noti added, ”it’s even harder now for Congress to do anything other than properly certify the election.”
The ECRA, which reformed the outdated Electoral Count Act of 1887, made clear that the vice president’s role in certification is purely ministerial. He or she has no authority to reject a state’s electoral votes, as Jan. 6 rioters hoped to pressure Vice President Mike Pence to do.
More important, the ECRA laid out a judicial process for states to resolve disputes over electoral votes before they reach Congress. And it barred members of Congress from objecting to electoral votes that have already been approved by that judicial process — ensuring, essentially, that federal courts, not partisan politicians in Washington or the states, are in control.
That same provision of the law also addressed another avenue for subversion: State lawmakers or officials could corrupt their state’s vote count long before Congress meets, by changing election rules after the fact or just appointing electors directly.
Trump and his allies schemed to do that in 2020, by pressing legislatures to declare a “failed election” and substitute their own slates. Since then, lawmakers in Wisconsin, North Carolina, and Georgia, among other states, have moved to gain more control over elections, raising concerns about the possibility for state-level subversion.
But under the ECRA, states must appoint their electors according to state laws that existed before the election. That makes state-level subversion much harder.
“There was a fear that state legislatures would come in afterwards and appoint the electors they want anyway,” said Edward B. Foley, an election law professor at Ohio State University and an expert on the Electoral College. “That can’t be done under the ECRA.”
Chaos and delay
But though the law on paper is clear, Foley said he worries about a massive glut of election litigation, all filed in the immediate pre- and post-election period in one close, pivotal state.
The result, and perhaps the intention, could be to overwhelm the courts, potentially delaying decisions until a state risks missing the Dec. 11 “safe harbor” deadline. That could mean its electoral votes might not be counted.
“The American judiciary is not built for thousands and thousands of hours of attention to election matters,” said Foley. “So I think there are reasons to fear that something really gets out of hand in terms of litigation, and you start bumping up against those deadlines.”
That threat could be exacerbated by a little-noticed aspect of the Supreme Court’s June ruling in a major elections case, Moore v. Harper.
The court rejected the claim, pushed by conservatives, that state legislatures have essentially free rein to make election rules, unconstrained by state courts. But, as the election law scholar Rick Hasen has noted, the justices did give themselves the power to second-guess state courts if they decide state courts went too far in regulating an election.
This authority, Hasen has written, is going to be “hanging out there, a new tool to be used to rein in especially voter-protective rulings of state courts. Every expansion of voting rights in the context of federal litigation will now yield a potential second federal lawsuit with uncertain results.”
Those statutory deadlines that Foley worries about also concern David Becker, the executive director of the Center for Election Innovation and Research.
He warns that election deniers — including grifters looking to exploit Trump voters’ fears of a stolen election for financial gain — will be even more effective this time at sowing disinformation if their candidate loses on election night. That could lead to even more, and more unpredictable, political violence.
“Instead of having it be focused on just one place at one time — the Capitol on January 6th — we could see it focused on the counting process, the certification process, on the meeting of the Electoral College, at various points in time in various places,” said Becker, a leading expert on election administration. “From talking to people around the country, there is a concern about efforts to basically undermine the will of the people.”
A year from now, the nation’s voters will decide another presidential contest — likely one that pits the same two candidates against each other.
Despite a slew of arrests and felony convictions stemming from the events of Jan. 6, 2021, there’s little sign that those who attacked democracy last time have significantly moderated their outlook.
Former President Donald Trump has warned that, if restored to power, he’ll seek retribution against his enemies. An unrepentant election denier runs one house of Congress. Threats of political violence, now commonplace, are said to have affected key voting decisions made by elected officials. And 3 out of 4 respondents to a recent poll think American democracy is at risk in the election, with nearly a quarter saying patriots may have to use violence to save the country.
“The United States electoral process, and indeed American democracy itself, is under great stress,” warned a September report by a group of election experts for the Safeguarding Democracy Project. “No longer can we take for granted that people will accept election results as legitimate.”
Since the tumult of January 2021, politicians, advocacy groups, and media outlets have rightly warned about a range of threats to a free and fair 2024 election — from problems with voter access and election administration to the potential for violence and chaos, or outright subversion of results, in the post-election period.
Perhaps less noticed has been the progress made toward shoring up the system — chiefly in the form of federal legislation making it harder to subvert a presidential election.
That’s why, with a year before voting culminates next November, it’s crucial to take stock of where the nation stands, and to identify where, in the view of election experts and voter advocates, the major vulnerabilities remain.
Election subversion
Perhaps the fear that looms largest in many observers’ minds is a repeat in some form of the failed, multi-pronged plot to overturn the election that culminated with the Jan. 6, 2021 attack — but one that succeeds this time.
For some, the recent ascension of Rep. Mike Johnson, R-La., to the role of speaker of the House adds to the sense of anxiety.
The New York Times has called Johnson “the most important architect” of congressional Republicans’ objections to the 2020 election results. Soon after the election, Johnson rallied 125 other GOP representatives to sign a legal brief arguing that President Joe Biden’s win should be overturned.
The Louisiana Republican then led the effort to get Republicans to refuse to certify the results, and he voted against certification in Arizona and Pennsylvania.
Johnson has never expressed regret for his role in the bid to overturn the results, or acknowledged that Biden was the legitimate winner.
“Johnson’s record on democracy is overtly dangerous, and his newfound power presents an acute threat to American elections,” an Oct. 26 email from a Democratic group of chief election officials, the Democratic Association of Secretaries of State, warned reporters.
There’s little doubt that having a leading election denier running the House is damaging to U.S. democracy in myriad ways — not least by further mainstreaming a dangerous ideology.
But, asked at an Oct. 25 news conference whether he was afraid that Johnson would try to overturn the election, Biden answered: “No.”
“Just like I was not worried that the last guy would be able to overturn the election,” Biden continued. “They had about 60 lawsuits and they all went to the Supreme Court and every time they lost. I understand the Constitution.”
Election law experts largely agree, noting that the speaker has no formal role in the certification process. And, they point out, it takes a full vote of both chambers to actually reject electoral votes — making it highly unlikely to succeed. For all the justified concern about what happened in 2020, no objection to a state’s electoral votes got more than seven votes in the Senate.
As important, experts say, the Electoral Count Reform Act, approved last year in response to Jan. 6, makes it all but impossible for Congress to overturn an election, no matter who’s in charge.
“The ability of Congress to interfere in the certification of a presidential election was already limited,” said Adav Noti, senior vice president and legal director of the Campaign Legal Center, which helped push for the ECRA. With the reform in place, Noti added, ”it’s even harder now for Congress to do anything other than properly certify the election.”
The ECRA, which reformed the outdated Electoral Count Act of 1887, made clear that the vice president’s role in certification is purely ministerial. He or she has no authority to reject a state’s electoral votes, as Jan. 6 rioters hoped to pressure Vice President Mike Pence to do.
More important, the ECRA laid out a judicial process for states to resolve disputes over electoral votes before they reach Congress. And it barred members of Congress from objecting to electoral votes that have already been approved by that judicial process — ensuring, essentially, that federal courts, not partisan politicians in Washington or the states, are in control.
That same provision of the law also addressed another avenue for subversion: State lawmakers or officials could corrupt their state’s vote count long before Congress meets, by changing election rules after the fact or just appointing electors directly.
Trump and his allies schemed to do that in 2020, by pressing legislatures to declare a “failed election” and substitute their own slates. Since then, lawmakers in Wisconsin, North Carolina, and Georgia, among other states, have moved to gain more control over elections, raising concerns about the possibility for state-level subversion.
But under the ECRA, states must appoint their electors according to state laws that existed before the election. That makes state-level subversion much harder.
“There was a fear that state legislatures would come in afterwards and appoint the electors they want anyway,” said Edward B. Foley, an election law professor at Ohio State University and an expert on the Electoral College. “That can’t be done under the ECRA.”
Chaos and delay
But though the law on paper is clear, Foley said he worries about a massive glut of election litigation, all filed in the immediate pre- and post-election period in one close, pivotal state.
The result, and perhaps the intention, could be to overwhelm the courts, potentially delaying decisions until a state risks missing the Dec. 11 “safe harbor” deadline. That could mean its electoral votes might not be counted.
“The American judiciary is not built for thousands and thousands of hours of attention to election matters,” said Foley. “So I think there are reasons to fear that something really gets out of hand in terms of litigation, and you start bumping up against those deadlines.”
That threat could be exacerbated by a little-noticed aspect of the Supreme Court’s June ruling in a major elections case, Moore v. Harper.
The court rejected the claim, pushed by conservatives, that state legislatures have essentially free rein to make election rules, unconstrained by state courts. But, as the election law scholar Rick Hasen has noted, the justices did give themselves the power to second-guess state courts if they decide state courts went too far in regulating an election.
This authority, Hasen has written, is going to be “hanging out there, a new tool to be used to rein in especially voter-protective rulings of state courts. Every expansion of voting rights in the context of federal litigation will now yield a potential second federal lawsuit with uncertain results.”
Those statutory deadlines that Foley worries about also concern David Becker, the executive director of the Center for Election Innovation and Research.
He warns that election deniers — including grifters looking to exploit Trump voters’ fears of a stolen election for financial gain — will be even more effective this time at sowing disinformation if their candidate loses on election night. That could lead to even more, and more unpredictable, political violence.
“Instead of having it be focused on just one place at one time — the Capitol on January 6th — we could see it focused on the counting process, the certification process, on the meeting of the Electoral College, at various points in time in various places,” said Becker, a leading expert on election administration. “From talking to people around the country, there is a concern about efforts to basically undermine the will of the people.”
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