It will be hard, but I have every confidence that the Dark Lord will find the inner strength to challenge the results after his election dreams are shattered by his continued blabbermouthing!
Why It Will Be Harder for Trump to Challenge This Year’s Election
New laws and court rulings have created a range of guardrails against efforts to delay or interfere with the electoral process.
By Richard L. Hasen, WSJ
Aug. 29, 2024 9:30 am ET
There are abundant signs that Republican nominee Donald Trump won’t accept the results of the 2024 election if he loses. He has taken to describing the Democrats’ switch from Joe Biden to Kamala Harris as a “coup,” suggesting that the election has already been rigged. He and his allies regularly claim that voting by noncitizens is rampant, though it’s rare. And he’s told reporters that he will accept the election results only if “everything’s honest,” making it plain that he’s prepared to conclude otherwise.
There is a decent chance we will not know whether Trump or Harris has won by Nov. 6, the day after the election. There may also be bumps in the road during the weeks before Congress counts the Electoral College votes on Jan. 6. Trump’s campaign co-manager Chris LaCivita signaled in July that a postelection legal and political battle lies ahead: “It’s not over until he puts his hand on the Bible and takes the oath…. It’s not over on Election Day. It’s over on Inauguration Day, ‘cause I wouldn’t put anything past anybody.”
No doubt we’re on track for another tense postelection season. The race is now looking very close, which leaves more room for uncertainty on Election Day and beyond. States such as Pennsylvania and Wisconsin have failed to pass laws that would let them process mail-in ballots more quickly before Election Day, which means that Trump could again appear to be ahead on election night only to see his lead disappear as more votes are counted. He may again declare victory prematurely.
Chris LaCivita, senior adviser to former President Trump, speaks to the media following the first presidential debate on June 27. Photo: Eva Marie Uzcategui/Bloomberg News
But there is also some good news: The country is now in far better shape to avoid the kind of protracted mess we saw in 2020. The fact that we are no longer facing the emergency demands of a pandemic is a big help, but no less important are the electoral guardrails that have been put in place since then.
So far, lawsuits alleging election irregularities haven’t gone anywhere. In Nevada, for example, Republicans have argued that a 2021 state law that expanded mail voting unfairly privileges Democrats, who are more likely to vote by mail after Trump polarized the issue in 2020. They also claimed that the law, which mandates counting mail ballots received within four business days of Election Day as long as they are postmarked on or by Election Day, does not conform with the federal deadline of voting by Election Day. A federal judge dismissed the suit in July.
Such politically motivated litigation gives the illusion that election officials are behaving unfairly, which encourages ordinary voters to believe the reckless charges of politicians and online extremists. This was the atmosphere that sparked the storming of the U.S. Capitol on Jan. 6, 2021 by Trump supporters over false claims that the election had been “stolen.”
Voters wait to vote in Atlanta, Ga., on Nov. 29, 2022. State election officials have echoed Trump’s unsubstantiated claims of election fraud, despite the insistence of the state’s Republican leadership that the 2020 election was fair. Photo: Alex Wong/Getty Images
We can expect many more lawsuits in swing states in the months ahead, but the chances are low that any of significance will succeed. In 2020, in the middle of the Covid-19 pandemic, many states made changes to election rules in the interest of public health, such as by extending deadlines for the receipt of mail-in ballots. These accommodations inspired a great deal of litigation, but only one lawsuit, involving a small number of ballots in Pennsylvania, succeeded. This time around, state election rules aren’t a moving target.
Whether it stretches for days or weeks, the time between casting votes and counting them can be dangerous, especially when a candidate has a history of blaming losses on fraud. If this race is as close as the 2020 election, we might again spend days in the dark, not knowing who won. This creates conditions for people to assume that routine issues like administrative delays and the time it takes to count a flood of mailed-in ballots are signs of irregularities in the vote.
There are already plans to make it possible to sow these seeds of doubt by delaying vote counts. In Georgia, for example, Trump loyalists have made changes to state rules that give county election boards the power to put off the certification of election results if they choose to investigate purported improprieties. Many of these local election officials have echoed the former president’s unsubstantiated claims of election fraud in 2020, despite the insistence of the state’s Republican Gov. Brian Kemp and Republican Secretary of State and chief election officer Brad Raffensperger that the election four years ago was fair.
Trump supporters may hope that by tying up some vote counts until Jan. 6—the deadline for announcing an Electoral College winner—they can deny either candidate an Electoral College majority, triggering what some call a “contingent election” under the Constitution’s 12th amendment, with each state’s House delegation casting a single vote. Because Republicans are likely to control more state delegations than Democrats even if Democrats retake the House (the new Congress takes office before the count), this overriding of the Electoral College would likely favor Trump.
But it is unlikely that frivolous attempts to delay certification would prevent a state from submitting its Electoral College votes to Congress in time. State legislatures set certification deadlines, which should override administrative foot-dragging even if sanctioned by state election boards. State courts and federal courts would likely intervene to make election officials do their jobs and prevent disenfranchising a state’s voters from participating in the presidential election.
Poll workers receive Vote-by-Mail ballots in a drive thru system in Doral, Fla., on Oct. 19, 2020. Many states changed election rules for public-health reasons during the Covid-19 pandemic, which inspired lawsuits over irregularities. State election rules aren’t a moving target this time around. Photo: Joe Raedle/Getty Images
In addition, under the 2022 Electoral Count Reform Act that Congress passed in response to the 2020 election shenanigans, if a state doesn’t certify its count, Congress must remove that state’s Electoral College votes from the tally of what counts as a majority. So a delay should not trigger a special election in the House to choose the next president.
In that same 2022 law, Congress tightened rules for how states submit Electoral College votes and how Congress counts them. As part of their effort to undermine the 2020 election, Trump and his allies encouraged fake electors across seven states to sign false certificates claiming that he had won in their states. Fake electors in Arizona, Georgia, Michigan and Nevada have since been charged with crimes. The new legislation rules out these kinds of schemes.
The law also prevents the vice president—in this case Kamala Harris—who presides over the Electoral College count in Congress, from simply throwing out votes she doesn’t like, as Trump urged Vice President Mike Pence to do in 2021.
A fake electors gambit would hit another roadblock if tried in 2024. The Supreme Court in the 2023 case of Moore v. Harper rejected an extreme version of the “independent state legislature” theory that Trump supporters had used in 2020 to argue that state legislatures had the power to do whatever they pleased when it came to federal elections, regardless of state constitutions and state courts. The case involved a question of partisan gerrymandering, not Electoral College votes, but its logic is the same: State legislatures have no free-floating power to ignore their own laws and constitutions.
Nor should people be worried that Democrats, if they control Congress on Jan. 6, 2025, won’t accept a Trump victory by claiming that he is ineligible because he participated in an insurrection against the government in 2020 in violation of the 14th Amendment. The Supreme Court all but closed the door to this strategy in its March decision in Trump v. Anderson, rejecting Colorado’s attempt to keep Trump off the ballot. Democrats in theory could try to ignore this ruling, but leading Democrats have explicitly said that they will not use the Electoral College count to prevent a Trump victory.
Election workers count ballots in Philadelphia on Nov. 4, 2020. States such as Pennsylvania have failed to pass laws that would let them process mail-in ballots faster, which means that Trump could again see his election-night lead disappear as more votes are counted. Photo: Spencer Platt/Getty Images
In the 2020 election, what saved the country from the meddling of bad actors was enough Republicans and Democrats in power—as judges, state election administrators, governors, legislators and members of Congress—who did the right thing. The system held.
There is good reason to trust that, with continued vigilance, there are still enough officials and advocates on both sides of the aisle who believe in democracy and will put the needs of the country over the ambitions of their party. Thankfully, there are also new laws in place to make sure the will of America’s voters won’t be denied.
Richard L. Hasen is professor of law and political science at the University of California, Los Angeles, where he directs the Safeguarding Democracy Project.
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