Imagining a Stolen 2024 Election

It's easy if you try.

NYT On Politics editor Blake Hounshell takes a deep dive into a question we’ve been asking for quite some time: “It’s 2024. Trump Backers Won’t Certify the Election. What Next, Legally?” The premise:

It’s a nightmare scenario for American democracy: The officials in charge of certifying an election refuse to do so, setting off a blizzard of litigation and possibly a constitutional crisis.

Rather obviously, this is quite plausible. After all, a Republican President tried to foment exactly that crisis less than two years ago. Thankfully, Republican election officials in every case did the right thing. Alas, they have been ostracized and in most cases ousted for doing so. The guardrails may now be gone.

In Arizona, Kari Lake, a charismatic former television anchor, and Mark Finchem, a state lawmaker, have a very good chance of becoming governor and secretary of state. Both are ardent supporters of Donald Trump and his false claims that the 2020 election was stolen.

On Friday, a group sponsored by Representative Liz Cheney, the vice chairwoman of the House committee investigating the Capitol assault, put $500,000 behind a television and digital ad that underscores the alarm some anti-Trump Republicans share about Lake and Finchem.

“If you care about the survival of our republic, we cannot give people power who will not honor elections,” Cheney says in the ad. “We must have elected officials who honor that responsibility.”

Another reason for the worries about Arizona in particular: Unlike in other states where Trump has promoted election-denying candidates, several of the politicians who pushed back on his calls to overturn the 2020 results will be gone.

Gov. Doug Ducey, a Republican who resisted Trump’s efforts in 2020, is leaving office after his term is up, as is Attorney General Mark Brnovich, an ally in that opposition. Rusty Bowers, who as the Republican speaker of the State House stood with Ducey and Brnovich, lost his primary this year for a State Senate seat. And even Brnovich, who ran unsuccessfully for the U.S. Senate against another election denier, Blake Masters, has shifted his tone about the 2020 election.

“Ducey was a little bit of a moderating factor,” said Marc Elias, the Democratic Party’s leading election lawyer. But Ducey was also “willing to tolerate a lot of crazy,” Elias added.

The governor is backing Lake, as is the Republican Governors Association, actions that Sarah Longwell, a Republican strategist whose group is spending at least $3 million in Arizona opposing Lake and Finchem, called “despicable.” Longwell said that Lake was especially dangerous because of her ability to “talk normal to the normies and crazy to the crazies.”

This is the frustrating, if understandable part: even the “good” Republican leadership who refused to go along with the Big Lie are nonetheless, with exceedingly rare exception, endorsing Republican candidates who are pushing it. Again, I fully understand why a conservative politician whose only hope for future office is within the Republican Party would refuse to back Democrats. But they’re effectively undermining the democratic process in so doing.

The most worrisome scenario, several nonpartisan experts said, is that Finchem and Lake might refuse to fulfill the traditionally ceremonial act of “canvassing” the results of a presidential election under Arizona law, or that the governor could refuse to sign the required “certificate of ascertainment” that is then sent to Washington.

Elias’s firm, which has grown to nearly 80 lawyers, would then have to decide whether to sue in state or federal court, or perhaps both, depending on which path was more relevant. But he acknowledged some uncertainty about how that litigation might play out.

Indeed. While I’m more confident than the average commenter here that the Roberts court would stop an obvious attempt to steal the election, there’s always the matter of the absurd “independent state legislature theory.”

One new factor in 2024 may be an overhauled Electoral Count Act, which is expected to pass Congress after the midterms. It would create a new panel of three federal judges who would rule on election-related lawsuits, with appeals going directly to the Supreme Court. Proponents say the new panel would allow disputes to be adjudicated more quickly.

“It’s not actually all that easy to anoint the loser of an election the winner,” cautioned David Becker, the director of the Center for Election Innovation and Research, a nonpartisan group.

“The one exception to that is the presidential election,” Becker said, in which there’s an opportunity for a “corrupt individual” to send a slate of electors to Washington that does not reflect the will of voters. If the national Electoral College results were close, a protracted dispute in Arizona could hamper Congress from rapidly determining the overall winner.

We haven’t faced that sort of threat since the Reconstruction period but it’s sadly plausible in the current environment.

But Becker said he was more worried about the prospect for political violence fueled by uncertainty than he was about the integrity of the legal system.

After the Capitol riots, that’s not just conjecture. It seems almost inevitable that, if Republicans lose in 2024, there will be violence. And, frankly, I’m not sure that, if Republicans win the election but Democrats either win the popular vote or can even plausibly charge that voter suppression was the reason Republicans carried decisive states, there won’t be violence.

Neither Lake nor Finchem responded to questions. Finchem has said he would certify the next election “as long as all lawful votes are counted and all votes cast are under the law,” while failing to specify what he means by “lawful.” Finchem has also said that he couldn’t imagine President Biden winning.

Presuming he runs (which I do in fact presume) and remains reasonably healthy through Election Day (which seems likely) he’s the odds-on favorite. Re-electing the President has been the default position in American politics for a very long time now.

Secretaries of state also have enormous power over elections, though it’s county officials that actually run them.

To take just one recent example: Finchem and Lake both support a return to hand-counting ballots, which election experts say would introduce more errors and uncertainty into the process.

One rural Arizona county controlled by Republicans, Cochise County, initially planned to count every vote in the midterms by hand — only to back down when Katie Hobbs, the Democratic secretary of state who is running for governor against Lake, threatened to sue.

In neighboring Nevada, another G.O.P.-controlled county’s plan to count ballots by hand is on hold after the State Supreme Court ruled the process illegal. The Republican secretary of state, Barbara Cegavske, then ordered the hand-counting process to “cease immediately.” Her possible successor, the Trump-backed Jim Marchant, might have acted differently.

This has become the Republican position but was the Democratic position in the aftermath of the 2000 debacle in Florida. It’s perfectly understandable that hand counting strikes people as more transparent—and that there is more trust in the existence of physical ballots, period—but Hounshell is right: it’s a step backward in reality.

One of the Arizona secretary of state’s chief tasks is assembling the elections procedures manual that, once approved by the governor and the attorney general, is distributed to county and local officials. Brnovich refused to accept the 2021 manual proposed by Hobbs, so the state has been using the 2019 edition.

The manual is limited to the confines of Arizona election law. But Finchem could tinker with the rules regarding the approval of voter registration, or ballot drop boxes, in ways that subtly favor Republicans, said Jim Barton, an election lawyer in Arizona. He could also adjust the certification procedure for presidential elections.

“You can imagine a lot of mischief with all the nitty-gritty stuff that nobody pays attention to,” said Richard Hasen, an elections expert at the University of California, Los Angeles.

There’s a lot of conjecture here but imagining a worst-case scenario is the point of the exercise.

Hounshell closes with the aforementioned legal theory:

The justices are expected to rule on a previously obscure legal theory called the independent state legislature doctrine. Conservatives argue that the Constitution granted state legislatures, rather than secretaries of state or courts, the full authority to determine how federal elections are carried out; liberals and many legal scholars say that’s nonsense.

If the court adopts the most aggressive version of the legal theory, Persily noted, it could raise questions about the constitutionality of the Electoral Count Act, adding a new wrinkle of uncertainty.

“My hair is on fire” to an even greater degree than it was in 2020, said Hasen, who published a prescient book that year called “Election Meltdown.”

Hasen has cried “Wolf!” many times at this point. But those familiar with the story know that having done so doesn’t preclude there being a wolf this time.

FILED UNDER: Campaign 2024, US Politics, , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. gVOR08 says:

    While I’m more confident than the average commenter here that the Roberts court would stop an obvious attempt to steal the election

    Indeed you are. They would stop an “obvious” attempt. But the matter may turn on their perception of obvious.

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  2. Sleeping Dog says:

    This all comes into play assuming Biden or another Dem wins. But there are a couple of pre-conditions. The first would be that the R candidate claims the election was stolen, despite all evidence to the contrary. If the R concedes, there is nothing to argue over. We can be sure that Trump would scream stolen, but what of DeSantis or Cruz? How many electoral votes would need to flip in order to change the results? It may not matter what AZ does. Then there is the unknowable, when push comes to shove would R legislators overrule the votes of the states citizens.

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  3. Liberal Capitalist says:

    We won’t have to worry about an election being stolen.

    On Nov 10th, we will see that the (R)’s have won many many elections as well as taken control of the house and senate.

    And they will have done this fairly, as election nubers will likely show.

    And this will be that many who are, and are willing to vote for, complete assholes voted in huge numbers.

    They just want to watch it burn.

    And we will be shocked. Shocked! How could this happen again? What is wrong with our messaging? How could our understanding of the desires of the electorate been so wrong?

    Bitter spite, and a desire to crush others completely in the name of their interpretation of God is an impossible wave to overcome.

    I sincerely hope that I am wrong. But I am not.

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  4. EddieInCA says:

    @Liberal Capitalist:

    I’m 100% with you. We have normalized shitty behavior, and anti-democratic norms to such an extent that I expect the GOP to burn it down. By the time the “good Republicans” realize what has happened it will be too late.

    Racism? Check.
    Anti-Semitism? Check
    Anti-LGBTQ? Check
    Anti-Immigrant? Check

    This happened in the 1930’s. Alot of Germans voted against inflation. It ended their democracy for 50 years.

    6
  5. Sleeping Dog says:

    @EddieInCA:

    What “good Republicans?” By and large any good R’s have left the party, either of their own volition or they’ve been booted, any remaining, possibly good Rs, are enabling the fascists by being silent.

    4
  6. Scott F. says:

    @Liberal Capitalist or @EddieInCA:
    I’m wondering what either of you think “burn it all down” will look like realistically. Will it be the clawback of 50+ years of social progress (as Eddie alludes to)? Will it be a broader authoritarianism meant to secure permanent power for the minority? Will it be something else?

    My read of the political situation is that things will have to get worse before they can get better – meaning that any reform of our dysfunctional electoral system won’t/can’t happen until some kind of constitutional crisis indicates there is a problem to many more voters in the electorate. I still believe the number of voters who value democracy outnumber those voters who would sacrifice democracy to secure their side’s power. But, as much as one might have hoped that people storming The Capitol would have been a wake up call, it apparently wasn’t bad enough to matter to enough people.

    I guess my question is – is there some level of “burned down” that is survivable as a necessary step to recovery?

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  7. Gustopher says:

    Hasen has cried “Wolf!” many times at this point. But those familiar with the story know that having done so doesn’t preclude there being a wolf this time.

    Wolves have been circling for quite some time.

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  8. Kurtz says:

    @gVOR08:

    Indeed you are. They would stop an “obvious” attempt. But the matter may turn on their perception of obvious.

    As difficult as it can be to figure out how every individual justice in a given case, my take is:

    I’m as sure as one can be when predicting SCOTUS decisions on:

    Sotomayor, Kagan, Brown Jackson, Roberts on one side; Thomas and Alito on the other.

    So, 4-2.

    I’m pretty sure Gorsuch clinches. Actually, I’d be at least mildly surprised if he sided with Alito and Thomas.*

    More than 50/50, but not as strongly as Gorsuch, I suspect Kavanaugh goes that way as well.

    Barrett probably sides with Inquisitor and Mostly-Predictable Enigma.

    *Kind of oddly, an argument made by Amar and Amar (Section II) plus an old discussion here with @HarvardLaw92 forms the basis for my opinion. But I disagree with Vikram Amar’s assessment that Gorsuch signing on to Alito’s statement wrt the denial of cert in Bookckvar signals he would sign onto ILS.

  9. Gustopher says:

    Some dude:

    To take just one recent example: Finchem and Lake both support a return to hand-counting ballots, which election experts say would introduce more errors and uncertainty into the process.

    JJ:

    It’s perfectly understandable that hand counting strikes people as more transparent—and that there is more trust in the existence of physical ballots, period—but Hounshell is right: it’s a step backward in reality.

    Part of people accepting elections is transparency, and sticking a mysterious black box* in the process makes it less transparent.

    I’m all for physical ballots everywhere.

    No hole punches though. Pen and paper leaves voter intent clearest. If the voter screws up, they can get a new ballot, or write their intent in the margin and annoy the counters.

    We shouldn’t be worried about Diebold changing votes in 2004, or the ghost of Hugo Chavez changing votes in 2020. The process needs to be transparent to avoid even the appearance of taint.

    And I would accept a small amount of noise and error with hand counts to get that transparency. We have a crisis of confidence in the system (have had it since 2000), and that is far worse than any slight wobble in results.

    Machine counts are fine-ish, at least for a preliminary number, but a hand recount if it is close. And definitely physical ballots.

    ——
    *: Having worked in software for decades, I’m often surprised by what systems do in the wild, even when I think I understand them… even when I’ve written them.

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  10. Argon says:

    Machine counts have more accuracy. To can forward the ballots with questionable marks to humans if necessary.

    1
  11. gVOR08 says:

    @Gustopher: As long as there are countable paper ballots and audits, which I believe are routine almost everywhere, I’m not seeing a problem with scanner counting of those ballots. In my mind, the failure, if there is one, is failing to adequately educate the electorate (who won’t pay any attention) on the processes already in place to ensure fair counts.

    Well, OK, the real problem is that FOX/GOP are able and determined to sow doubt, no matter what the process. And if they have partisan poll watchers harassing voters, partisan observers elbowing into the count, and partisan officials elected on election denialism tallying and reporting, why should I have any confidence in their hand count?

    The problem in FL in 2000 was not so much machine counting as that the margin of victory fell within the quite small margin of error. Even there, the punch card ballots were retained and they could have finished the very careful hand count ordered by the state court. But the Federal Supremes decided a deadline was more important than an accurate, transparent recount.

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  12. gVOR08 says:

    Can I has Edit if I post a new comment?
    ETA – I can, I can has edit.

  13. CSK says:

    @gVOR08:

    Refresh the page after you’ve posted and the edit function often appears. Not always.

  14. Liberal Capitalist says:

    @Scott F.:

    Scott – I can tell you this: As a Detroiter, I have been in a sport riot. It was the World Series when the Tigers won at the old Tiger Stadium.

    As someone that was well into their Sociology and Political Science dual degree studies, I could sense when the crowd turned, and I chose to move to a space of safety (yes, literally sought out a safe space) and watched the mayhem occur.

    Take that as a qualifier if you wish or not… but this background has gotten me out of the weirdest situations in my travels all over the world. And at my core, I really do consider myself an optimist… because I always look to the better (survivable) solution.

    And my comment is this: We have well passed the tipping point. It’s already happened. There are too many arsonists lighting fires to have the firefighters put them out.

    There is nothing more left than the inevitable slide downwards.

    Knowing all that we know, people are still proudly flying their Trump flags and literally (not at all figuratively) calling for the extermination of Democrats. Here at the Southern Estate (near Pensacola), people I’ve spoken to are afraid of putting up DEM related lawn signs for fear of mayhem.

    Consider this: MAGA want to go back to some better time like the 1950’s … and when you explain that what Made America Great then was a 91% corporate tax and a workforce that was 75% union… well, the cognitive dissidence just won’t allow them to process that info.

    Ask them for forward looking policies, it doesn’t get much further than Trump winning. If they do, it comes down to cutting taxes / smaller government, because that is the mantra that they have been chanting for decades. and it is already well past the “What’s the matter with Kansas” localization problem.

    As to getting worse before it gets better… the system isn’t actually built to do that. There is a presumption that all would work together in an attempt to ALWAYS strive for better.

    Here we actually have billionaires spending millions (nearly billions) to intentionally make things sociologically worse. And there is no way to stop them as it is today. The thought leadership is looking to Hungary as their model, and who-the-hell-cares if inflation in Hungary is over 20%, they just love that one party white Christian racist vibe. (Even though if THEY were to move there, they would be rejected by many because their ethnology is not generationally Hungarian).

    Think about the American workplace: If someone speaks up the usual trumpist rhetoric, very little happens. However, bring up facts or even worse ideas that would benefit Americans as a while, and now you are labeled a socialist communist fascist (because they have no idea what words actually mean, they just want to BE mean.)

    Yes, yes, Generalizations are bad, yadda yadda yadda… but again, I’m not wrong.

    I could just spit.

    3
  15. gVOR08 says:

    @Kurtz: I hope your right. Actually, I hope they’re not tested. It has to be close to start with. And you’re looking at individual Justices more carefully than I have. Precedent is thin. Trump supporters brought what, 60+ suits, and lost essentially all. I don’t recall what, if anything, reached the Supremes, but none of those cases would have reversed the election. The only real real precedent is Bush v Gore, in which five of the seven GOP appointees decided to make the R prez.

    Would the current Court blow their legitimacy in order to throw the election to an R? I’m not confident even Roberts would vote against if push really came to shove. If it reaches the Supremes, it won’t be “The count favored the D, toss it to the R because the AZ lege said so.” There will be considerable ambiguity and a lot of legal cover provided to the Court. It will be a few thousand ballots with questions about signatures or dates or some such.

    1
  16. gVOR08 says:

    @CSK: Refresh didn’t bring up edit. It often doesn’t unless another comment has posted. Even another one from me usually allows Edit for both.

  17. Just nutha ignint cracker says:

    @Liberal Capitalist: I’m feeling mean spirited today (don’t know why, though), so I’ll offer the same advice we give to working class people in rust beltey areas about their economic problems–perhaps you should move.

  18. Gustopher says:

    @gVOR08:

    As long as there are countable paper ballots and audits, which I believe are routine almost everywhere

    According to Reuters, about 70% of America uses hand marked paper ballots, 23% machine marked paper ballots, and 7% electronic voting that may or may not also print out a receipt.

    https://graphics.reuters.com/USA-ELECTION/VOTING/mypmnewdlvr/

    So, we start with 7% of the country using who-the-fuck-knows level of transparency.

    Having seen the old voting machines in NY, and how there isn’t an indication to the voter that the machine is marking anything (correctly or incorrectly), I’m going to lump 50% of the machine marked ballots in with that as a back of the envelope guess.

    So, 15% (7 + (23 /2)) of votes cast through opaque means. Back of envelope.

    Another assumption here is about distribution — if Vermont has less transparent voting it is less harmful to the confidence in results than Arizona, Pennsylvania, etc)

    But, if 1 in 6 votes is cast through what is effectively a black box, that is concerning when elections are decided by a few percentage points.

    The problem in FL in 2000 was not so much machine counting as that the margin of victory fell within the quite small margin of error. Even there, the punch card ballots were retained and they could have finished the very careful hand count ordered by the state court.

    Dimpled chads. Hanging chads. Punch card voting does a poor job of capturing the intent of the voter with high accuracy.

    Machine counting is less worrisome than machines marking the ballots, or not having actual ballots. Hand recounts are generally very close when they do occur, and usually seem to come down to “we missed some ballots the first time”.

    Yes, more education is needed there. And more pushback on the lies.

  19. Liberal Capitalist says:

    @Just nutha ignint cracker:

    Nope, I’m not taking that mean spirited at all. If you consider what I wrote earlier, I definitely moved to a safe space. Totally open to that.

    And considering that both sides of my family had lost everything and moved here (USA), I know that relocation even under the worst-case scenario is survivable.

    I have a home in the Denver area as well where I split part of my time. But the challenges of which I speak are not tied to a specific community or state.

    If the Senate, house and Supreme Court are all MAGA, and the inevitable Biden impeachment follows, then tell me: Move where?

    Moving from FL to CO is… well… deck chairs on the Titanic, right?

    And all kidding aside: I could liquidate and move dramatically elsewhere. But the infuriating thing is that I can describe a lemming, show the history of lemmings, point out where the lemmings are right now and even get a person to agree that they are part of the massive lemming crowd… but to say: Hey!!! There is the cliff! Right F’ing THERE !!!

    Well, clearly that is just me overreacting. How silly.

    .

    Realistically, I’ll likely financially wait out for the new political system. The initial swing will likely make stocks go up, as they drive interest rates down. Sell both properties then and skedaddle before the wheels come off the economic system.

    I have an option to pursue an EU based passport, so I’m going to focus on that.

    But then the next question is: MOVE WHERE?

    Developed countries have agreed to lower carbon output by 3%. We need a decrease of at least 45% to prevent catastrophic climate change. Again, the lemming thing.

    Yeah, I’ll likely be good for 20 years (max 30, but I doubt it)… but I’ve already steeled myself to the fact that what we considered normal no longer is or will be.

    1
  20. EddieInCA says:

    @Liberal Capitalist:

    I don’t have kids. My mom is 87. Only work keeps me in Los Angeles and California.

    I’m making plans to leave as soon as I’m done working. I already have a home in Ecuador, on the Pacific, that may or may not be my ultimate destination. I’m also seriously looking at Portugal, Costa Rica.

    I believe the US best days are behind us. That makes me sad. But when 47% of the people can continue to support the bullshit that passes for GOP policy, and the toxic bullshit that is leading to more political violence and the tearing down of guardrails, it’s time to go.

    The only really big decision left for me is whether I keep my home in LA in case it gets better, but I have such little hope that it will, that I doubt it makes sense to keep the house, even though it’s paid off.

    1
  21. Just nutha ignint cracker says:

    @EddieInCA: Since I’m a guy who believes in cycles, my suggestion is that you should consider getting your money out of your LA house while that money is still there. In my lifetime, though not recently, home prices in SoCal have dropped precipitously. Just sayin’…