In Case of an Election Crisis, This Is What You Need to Know

 

In Case of an Election Crisis, This Is What You Need to Know

Oct. 16, 2024

By Neal K. Katyal

Mr. Katyal is a professor at Georgetown University Law Center.

In 2020, when Donald Trump questioned the results of the election, the courts decisively rejected his efforts, over and over again. In 2024, the judicial branch may be unable to save our democracy.

The rogues are no longer amateurs. They have spent the last four years going pro, meticulously devising a strategy across multiple fronts — state legislatures, Congress, executive branches and elected judges — to overturn any close election.

The new challenges will take place in forums that have increasingly purged officials who put country over party. They may take place against the backdrop of razor-thin election margins in key swing states, meaning that any successful challenge could potentially change the election.

We have just a few short weeks to understand these challenges so that we can be vigilant against them.

First, in the courts, dozens of suits have already been filed. Litigation in Pennsylvania has begun over whether undated mail-in ballots are permissible and whether provisional ballots can be allowed. Stephen Miller, the former Trump adviser, has brought suit in Arizona claiming that judges should be able to throw out election results.

Many states have recently changed how they conduct voting. Even a minor modification could tee up legal challenges, and some affirmatively invite chaos.

Any time a state changes an election rule, or can be alleged not to have followed one, someone with legal standing (like a resident of that state or candidate or party) can bring a lawsuit. Recently, courts in Georgia and Pennsylvania have protected voting rights, but these lower court decisions may be appealed within the state system.

Lawsuits will also make their way to federal courts. Federal judges have on occasion been known to act in political ways and any one of the 1,200 of them could make a decision that plunges the nation into deep confusion. In regular times, the judicial system corrects for outlier judges through the appeals process, including if necessary to the U.S. Supreme Court. But here we are looking at a narrow window of time, and public confidence in the court is at near a three-decade low. No matter how nonpartisan the justices are, should the Supreme Court intervene, there is a high chance millions of Americans would feel the decision unfair.

Second, state officials and local election boards also can wreak havoc by refusing to certify elections, and this time they will have new tools to manufacture justifications for undermining democracy. A new Georgia law empowering local boards to investigate voter fraud offers a prime example. On its face, the law sounds laudatory, or at least innocuous. But the law could be read to give an election board the power to cherry-pick an instance or two, claim the entire election illegitimate and refuse to certify the votes. This is straight out of the 2020 playbook, when Mr. Trump reportedly successfully pressured two Wayne County, Mich., election officials to not certify the 2020 vote totals. Fortunately, that tactic didn’t work. This year it might.

In 2022, Congress passed the Electoral Count Reform and Presidential Transition Improvement Act, which tried to reduce the risk by stating that, unless the state designates another official in advance, the governor of a state, and not a local board, must certify electors. But the governor may be in on the fix, too, or give in to a pressure campaign.

Third, there are state legislatures to contend with: They might make baseless allegations of fraud and interfere to get a different slate of electors appointed to the Electoral College, as happened in 2020. Last year, in a case called Moore v. Harper, the Supreme Court put an end to many such tactics (disclosure: I argued the case in front of the court). But a state legislature might ignore the law and try anyway, especially if the governor of that state is politically aligned and seizes on the alternative slate.

Fourth, the Congress has the power to swing the entire election. The rules are complex — even as a law professor I can barely make sense of them.

The good news is that, under the 2022 law, Congress has reduced the chance of mischief. The threshold for a member of Congress to object to the vote from any state is higher — it must be signed by at least 20 percent of the members of both houses for it to be taken up and perhaps debated and voted on. To pass, an objection must be sustained by a simple majority in both chambers. Only two categories of objections are permissible, either if the vote of any electors was not “regularly given” or if the electors were not “lawfully certified.”

The bad news is that the rules are so complicated that they could be stretched, wrongly, to give Congress the power to select the next president by sustaining bogus objections. Don’t get me wrong, such maneuvering is totally inconsistent with the 2022 law. But it can be attempted and create chaos. Likewise, if a governor certifies a fake slate, it will be hard for Congress to fix it.

Before 2020, most Americans had no reason to fear this problem. Political parties largely acted in good faith, and most understood that our basic democratic norms were sacrosanct. In a world in which one party is still consumed by election fraud claims from 2020 (as JD Vance’s nonanswer in the debate underscored) and is prepared to claim the same in 2024, we have much to fear.

It does not require much imagination to see a bad faith actor in Congress try to squeeze through bogus election fraud theories and plunge the country into uncertainty on Jan. 6. The 20 percent voting threshold is meant to avoid crackpot election fraud theories, but these days more than 20 percent of Congress might be inclined to support a crackpot theory. And some Republican strategists are gearing up to argue the 2022 Electoral Count Reform Act is unconstitutional and invalid.

Here’s yet another wrinkle: If no candidate gets a majority of the Electoral College, either through mischief or a simple tie, then the Constitution sends the election to Congress. Mischief can occur on Jan. 6, for example, with Congress knocking votes of electors as not being “regularly given.” If for whatever reason no candidate gets a majority of electoral votes, the House will decide the presidency, under arcane voting rules in which states, and not a House majority, pick the president.

The stark reality is that there are no immediate solutions to a potential election crisis. The personnel to trigger one — in the courts, legislatures and executive branches — are largely in place.

Two votes on Nov. 5 will matter tremendously to sidestepping the chaos. One is the presidential vote. If either candidate wins the Electoral College decisively, any dispute will be rendered academic.

The other is the vote for Congress. A key point here is that it is the new House and Senate, not the existing ones, that will call the shots on Jan. 6. Congress desperately needs principled people who will put democracy over self-interest and party politics.

Americans should vote for candidates who share a commitment to democracy and who will think critically before accepting election innuendo. The next month must be about ensuring continued rule by the people and for the people.