Benjy Sarlin, policy editor for NBC News, claims “What’s keeping democracy experts up most at night? An overturned election.” While one would think the inability of a sitting President to get his own party’s state election officials to cooperate in the attempt this past go-around would provide solace, observers point to changes underway to remove those guard rails.
There’s no legal avenue for Trump to reverse the 2020 results. But a half-dozen scholars who study democracy and election laws told NBC News they are increasingly worried that 2024 could be a repeat of 2020, only with a party further remade in the former president’s image and better equipped to sow disorder during the process and even potentially overturn the results.
“Obviously the insurrection was horrific in its violence and assault on democracy, but it didn’t disrupt the true winner of the election,” said Edward B. Foley, a professor at Moritz College of Law at Ohio State University who researches election law. “What you don’t want is it to have been a rehearsal.”
Nightmare scenarios include local or state officials refusing to certify votes, governors and state legislatures submitting electoral votes that disagree with each other or overrule the apparent vote counts, fights over the legitimacy of judges overseeing the process and the House and Senate disagreeing on the winner. A chaotic transition could create an opening for further violence, either from extremists attempting to disrupt the process again or mass unrest if the winner is viewed as illegitimate.
“We should not pretend these dangers are fantastical or that these are absurd hypotheticals,” Rick Hasen, a law professor at the University of California, Irvine. “Given what we saw Trump actually do in 2020, these things are now within the realm of possibility and need to be legislated against and organized against so we have a fair election process going forward.”
Rather clearly, far too many Republican politicians at the national and state levels are going along with the Big Lie. That’s worrisome. But, again, the “insurrection” amounted to a hissy fit and all the legal challenges were laughed out of court. If that was a “dress rehearsal,” it’s time for a recasting.
New and proposed laws in states like Georgia and Arizona have sought to wrest power from state and local election officials, some of whom played a role in resisting the former president’s demands last election.
Republicans face significant pressure from their base to make these types of systemic changes — and potentially go much further. Lee Drutman, a senior fellow at the New America foundation, released survey data last month that found 46 percent of Republicans supported empowering state legislatures to overturn election results in states President Joe Biden won, as Trump demanded they do in 2020.
“At a psychological level, there’s a sense that ‘we’re the legitimate Americans and the natural majority,’ and the only way the other side could win is through fraud,” Drutman said.
While that attitude is far too pervasive, Drutman is viewing the survey data through a partisan lens. His own poll shows that Republicans in the states in question legitimately think the election was stolen from Trump, so they naturally want a remedy for that. That’s very different than wanting “state legislatures to overturn election results in states President Joe Biden won.” Regardless, the mere fact that so many believe this Big Lie—and think something needs to be done to prevent Democrats from stealing another election—is highly problematic.
Still, it seems the experts are spinning fantasies.
Some observers worry the party’s increased willingness to even entertain these scenarios could create perverse incentives in which state or local officials try to boost the odds of a poorly administered election that would give partisan leaders more flexibility to intervene.
“Federal law contains an arcane provision that allows state legislatures, in certain circumstances, to directly appoint presidential electors after Election Day if there has been a ‘failed’ election,” Lisa Manheim, a professor at the University of Washington School of Law, said. “I worry about state legislatures trying to use errors in election administration — including errors the legislature itself has permitted or even facilitated — as a pretextual ground for triggering this provision.”
Critics argue that proposed state laws in places like Texas, for example, that would impose new criminal penalties on election administrators could discourage people from taking crucial positions, especially given the abuse directed toward these typically nondescript workers after the 2020 race.
Hasen and other experts have called on Congress to pursue reforms to make it harder to challenge state results, clarify ambiguities in how disputes are mediated and require states to provide a clear paper trail for all ballots so disputes can be reviewed transparently by courts and independent observers. Most of these concerns are distinct from voting reform bills pursued by Democrats in Congress, which have been blocked by Republicans.
Regardless of the likelihood of a conspiracy to steal the next election, it absolutely makes sense for Congress to establish uniform rules ahead of time. Alas, the filibuster makes that exceedingly unlikely.
And, yes, the climate makes fealty to the honest election returns less likely than it was just months ago:
If a state submits questionable results or there’s a disagreement between the state legislature and governor, it will be up to the House and Senate to sort it out. In the event they can’t agree on approving competing claims, however, the law defers to the governor. If a state cannot submit its electoral votes in time, the law also suggests a state legislature may step in later.
In 2020, every governor and state legislature accepted the election results, but the midterms could reshuffle the landscape. Trump has sought to punish Republican incumbents like Georgia Gov. Brian Kemp and Secretary of State Brad Raffensperger with primary challenges. Trump has also lashed out at otherwise supportive Republican legislators in states like Wisconsin and Michigan who have affirmed the results.
“The fact that it held in 2020 doesn’t guarantee it will hold in 2024,” Omar Wasow, an assistant professor of politics at Princeton University, said. “You need ethical people in these jobs, and we’re seeing a lot of ethical people leaving in part because they’ve been threatened or attacked by partisans or because the level of vitriol they’ve been subject to is not worth the effort.”
