Trump may try to overturn the election. But it won’t be easy.
Past experience suggests Trump will not succeed in contesting a Harris
win.
October 31, 2024 at 7:45 a.m. EDT
Ever since felon and former president Donald Trump announced
his current run, democracy defenders have worried about a replay of 2020, when
Joe Biden’s win in a duly administered election was followed by an attempted
coup. We have already seen Trump conniving to reject defeat at the polls: He
and his running mate refuse to state unequivocally they will accept the
outcome. Trump, for months, has been talking about (nonexistent) illegal votes from noncitizen immigrants. His allies declared the
election illegitimate as far back as July. MAGA lawyers are litigating
roughly 200 lawsuits to block
certain ballots, delay or interfere with counting, avoid certification and
create new hurdles to voting.
In short, all signs point to a scenario in which a win
for Kamala Harris might be
followed by Trump attempting to overturn the election, and news outlets such
as Politico speculate that
he just might pull it off this time. It behooves us to assess the real risks
and put to bed some of the most extreme scenarios.
For starters, lawyers for the GOP are already on a heck of
a losing streak around the country. They have failed to show evidence of undocumented immigrants voting
in statistically significant numbers. A court rejected the attempt to block
counting of Pennsylvania mail-in
ballots because the inner security envelope was missing. Their Fulton County, Georgia, stunts
(mandating a hand count and making certification discretionary) were thrown out
of court. Some efforts to purge voter rolls at the last minute were blocked (though
the U.S. Supreme Court on Wednesday reversed a lower court decision, allowing Virginia to
purge its rolls despite a federal statute prohibiting such action so close to
the election). Challenging overseas ballots, including
military ballots, was a bust. An effort to block ballots received up to three
days after Election Day lost in Nevada.
Norm Eisen, chair of the bipartisan State Democracy
Defenders Action, tells me that GOP litigation has been “thoroughly rejected so
far, meeting the same fate as Trump’s notorious 62 failed cases in the prior
cycle.” Calling it a desperate strategy, he adds that “if the judicial returns
so far are any indication, it will continue to flop.”
After the
votes are cast, Republicans will undoubtedly argue the election was tainted by
illegally cast and wrongly counted ballots. Their likely problem: a lack of
evidence.
Regarding undocumented immigrants, study after study and Republicans’ own
efforts have turned up negligible instances of illegal voting. Without
evidence, any lawsuits will fail, just as the pre-election cases did.
As for overseas ballots, the Federal Voting Assistance Program has been
in effect for decades to “Assist military and overseas citizen
voters exercise their right to vote — no matter where they are.” The Brennan Center explains:
“The law, also known as UOCAVA, was enacted during
the Reagan administration to make procedures for overseas voting more
straightforward. It requires states to allow military personnel and other U.S.
citizens to vote in federal elections by absentee ballot in their former state
of residence.” It is unsurprising, then, that lawsuits recently filed by
Republicans in Michigan, North Carolina, and Pennsylvania to block absentee
ballots or remove voters from rolls lacked any evidence of wrongdoing or fraud.
To be clear, all states have checks in place to make sure those requesting
ballots and voting from overseas are eligible citizens.
Just as in 2020, any 2024 bogus suits will almost certainly
get tossed. Certainly, the wider the margin, the less plausible their cases,
but even a small margin of victory will stand if there is no evidence of
wrongdoing.
As in 2020, Trump’s legal tumult seems designed not so much
to prove the election “stolen” as to cast the election as illegitimate. This is
the essence of antidemocratic movements: No election can be valid
unless they win. The will of the people is irrelevant.
Likewise, schemes to withhold certification are almost guaranteed to lose. In
every swing state, a party can get a court to order certification or
press criminal charges against
recalcitrant officials. In states such as Michigan, officeholders (e.g.,
Democratic Gov. Gretchen Whitmer) can certify even if local officials refuse.
Furthermore, if states refuse to certify or a possible GOP-controlled Congress
refuses to accept electors, the number of electoral college votes needed to win
would be reduced from 270. Vice President Kamala Harris needs
only a majority of the certified electors to win.
Voters should be concerned about other antidemocratic
antics, such as removing access to ballot boxes or even setting them on fire.
However, law enforcement and
city officials have investigated these incidents, and boxes can be replaced and
voters given provisional ballots if their original ballot was destroyed.
(Previously, right-wing groups have tried to install fake dropboxes and
surveilled them with armed men; courts
stopped such intimidation.)
As a result of concerns about violence, threats and
intimidation directed at poll workers, the Justice Department in 2021 rolled
out an election task force to
investigate, prevent and prosecute such incidents and to stop fraud. That is up
and running.
The Justice Department has also activated its
Election Day program that pairs U.S. attorneys with local law
enforcement. U.S. attorneys have
reaffirmed DOJ’s critical role to prevent violence and intimidation,
deploying district election officers to
field complaints:
The Department of Justice has an important role in
deterring and combating discrimination and intimidation at the polls, threats
of violence directed at election officials and poll workers, and election
fraud. The Department will address these violations wherever they occur. The
Department’s longstanding Election Day Program ... also seeks to ensure public
confidence in the electoral process by providing local points of contact within
the Department for the public to report possible federal election law violations.
...
Federal law protects against such crimes as threatening
violence against election officials or staff, intimidating or bribing voters,
buying and selling votes, impersonating voters, altering vote tallies, stuffing
ballot boxes, and marking ballots for voters against their wishes or without
their input. It also contains special protections for the rights of voters, and
provides that they can vote free from interference, including intimidation, and
other acts designed to prevent or discourage people from voting or voting for
the candidate of their choice.
Authorities at all levels, in sum, are prepared to handle
violence and fraud. On Jan. 6, 2025, the Capitol
will be under heavy lockdown given its designation as a National Special Security Event.
Republicans’ rejection of democracy is tragic and
dangerous, but a well-prepared administration, Democratic and DOJ lawyers,
courts, and law enforcement make it virtually impossible to reverse a Trump
defeat. The system, I am confident, will hold.