Heading into the 2022 midterms, one among the largest questions was to what degree the machinery of future elections can be controlled by politicians who campaigned on the premise that the 2020 Presidential vote was rigged. If enough Trumpian candidates won, the previous President would have the prospect in 2024 to do what he tried to do last time: steal the Presidency. And, indeed, the Latest York Times found that greater than 200 candidates who called the 2020 result into query were elected to numerous offices two weeks ago.
But, within the five crucial swing states which are almost sure to make your mind up the following election, Republicans almost uniformly failed. In Arizona, Democrats won the races for governor and for secretary of state. They did the identical in Michigan and Wisconsin, and in addition kept the governorship in Pennsylvania. In Georgia, Democrats got here up short—the Republican governor, Brian Kemp, and the secretary of state, Brad Raffensperger, coasted to reëlection. But they did so, no less than partly, after standing up to Donald Trump in 2020 and refusing to take motion on his unfounded claims of fraud.
I recently spoke by phone with Richard L. Hasen, who’s the director of the Safeguarding Democracy Project at U.C.L.A. and an authority in elections law, about what the 2022 results mean for 2024, and what longer-term threats to American democracy remain. During our conversation, which has been edited for length and clarity, we discussed potential weak spots in the following Presidential election, what a landmark case before the Supreme Court could mean for the way the US conducts future elections, and why laws attempting to restrict voting access so often fail.
I used to be hoping to divide this conversation into the way you’re interested by threats to democracy in 2024, and the way you’re interested by them more broadly. What’s your thought in regards to the former after the midterms?
I wouldn’t go thus far as to say that we dodged a bullet, but I might say that I’m somewhat less concerned than I used to be two weeks ago. I used to be most fearful about governors and secretaries of state who were election deniers. Either they’re lying, wherein case they’ll’t be trusted to fairly report election results, or they’ve been duped, wherein case they’re not smart enough to be running or certifying elections. The proven fact that those folks lost in all of the places that matter is an enormous deal.
There are greater than 4 states where election skeptics won secretaries-of-state races. That’s worrisome, and it shows an absence of commitment to the rule of law, but those states aren’t going to be swing states. Moreover, no less than the Michigan legislature, and doubtless the Pennsylvania legislature, are not any longer ready where Donald Trump could try to control them into putting in a second fake slate of electors.
Right, and it is extremely difficult to have an Electoral College majority without either Michigan or Pennsylvania.
Yes.
In most states, the governor and the secretary of state certify election results. Was the fear there that they’d not certify a good vote, or that they’d try to alter the totals? How did you see the danger going into 2024?
There was no single danger. Considered one of the things that became very evident from the try and steal the election in 2020 is that the Presidential vote will be manipulated in so many places. For instance, in Michigan there’s a certification board that has to do its job, and essentially rubber-stamp the election results. There was pressure there to get the Republican members of the board to not certify, and that just about happened. One abstained, and the opposite one gave this heroic speech, after which was essentially fired.
Under the 1887 Electoral Count Act, which is the law that governs how Congress counts the Electoral College votes, a governor’s signature on the slate of electors is currently the tiebreaker if there are alternative slates. The governor’s role may be very essential. A secretary of state who lacks scruples could say, “I do think that the election was stolen, and, subsequently, the legislature should are available and appoint its own electors.” There are plenty of ways in which this may occur.
These are still theoretical possibilities—which is why Congress urgently must pass that E.C.A. reform bill, which looks prefer it has a very good shot within the lame-duck session. Since the system is determined by people acting in good faith, and most of the individuals who’ve indicated that they’d not act in good faith lost their elections, I’m somewhat less terrified now.
What threats remain to the 2024 election?
Congress may not pass E.C.A. reform, and meaning there are potential ways in which Trump could attempt to get legislatures to flip. Let’s say the election comes all the way down to just the state of Arizona, and it’s Trump versus Joe Biden. The state of Arizona votes for Biden, and the state legislature says, “We predict there’s fraud, and we’re going to appoint a unique slate of electors.” There is perhaps a fight over which electors ought to be accepted. If Republicans control each houses of Congress, and Kamala Harris is the Democrat who’s presiding over the Electoral College count, you may imagine a situation where there’s some sort of stalemate, or something that would mess with things.
It’s much less likely, partly because Governor Katie Hobbs, the Democratic candidate who won in Arizona, presumably can be sending in a slate of electors that reflected the views of the people, and that ought to suffice under the E.C.A. We saw John Eastman making arguments in 2020 that the E.C.A. is just not itself constitutional, and legislatures have more power. There are still ways in which it could occur. It’s just hard to see how.
The explanation you said, “If Republicans control each houses of Congress,” when it comes to certifying the 2024 Presidential election, is that the certification might be done by the Congress that’s elected in 2024, correct?
Right, it’ll be the brand new Congress that is available in.
Moving to E.C.A. reform: What’s the E.C.A., why does it allow for therefore many weak points, and what does this reform—which is being pushed by a bipartisan group of senators—actually do?
There was a disputed election in 1876. The dispute indicated that the principles for the way Congress was alleged to undergo the strategy of counting Electoral College votes was uncertain. In 1887, the E.C.A. was passed—it has a bunch of rules for the way Electoral College votes are counted. Those rules are written in ways which are in some cases opaque or ambiguous. For somebody like Trump, who was in search of ways to try to control the method, there was enough manipulatable language in there that you possibly can attempt to affect the consequence of the election. For instance, when Trump argued that Vice-President Mike Pence had the ability to throw out Electoral College votes of states where Trump had claimed that there was fraud, Trump was counting on provisions within the E.C.A. which indicate that the Vice-President presides over the meeting.
A greater reading of the E.C.A., which is the reading that Pence had, is that the Vice-President has no power to unilaterally throw out Electoral College votes. Similarly, there’s a provision within the federal law that claims that when there’s a failed Presidential election in a state, the state legislature can step in and appoint its own slate of electors. Trump tried to argue that a failed election includes one wherein there are irregularities, or fraud, which he claimed were occurring, and that that gave the legislature the ability to do these sorts of things.