For the past four years, Donald J. Trump has been proclaiming the American electoral process “rigged,” decrying events that displease him as “election interference” and laying the groundwork to contest another loss at the polls.
It follows the playbook from his loss in 2020, when the former president weaponized disinformation and exploited perceived weak points or vagueness in election law in an attempt to overturn results.
At the same time, lawmakers and election officials have been trying to shore up the electoral system against another potential attempt to subvert a presidential election. Federal laws regarding the Electoral College were changed. There is stronger case law to knock down specious legal claims, and Mr. Trump is no longer sitting in the Oval Office with the levers of government in his grasp.
But even with a national effort to reinforce the country’s democratic institutions, a smooth path to picking the next president still requires the good faith buy-in of its citizens, candidates and political parties. Absent that, there are a number of ways that the next few weeks — both before and after the polls close — could be rocky.
Here is a look at some possibilities:
A flood of litigation
Already, more than 187 election-related lawsuits have been filed, including at least 116 seeking some restrictions to voting and 68 filed by those seeking to expand or protect voting, according to data from Democracy Docket, a Democratic-aligned group that tracks election cases. The cases represent an extraordinary inundation of litigation before the election.
A lot of critical cases have been decided. Judges in Georgia have found that local election officials cannot refuse to certify elections, while judges in North Carolina ruled against a Republican-led effort to kick 225,000 voters off the rolls. Courts are working as quickly as they can to decide cases that could affect the election and, much as they were in the aftermath of 2020, have been a bulwark against the most outlandish and subversive arguments.
But 115 cases remain open. And no matter how specious the claims challenging election processes or the legitimacy of voters, any open or pending litigation could prove grist for post-election rhetoric. Similarly, cases dismissed simply because the people who brought a case did not have standing to do so — rather than on the merits of their arguments — could still be used by those seeking to cast doubt on the process.
Some right-wing lawsuits have sought to disqualify specific numbers of voters in key states. Democracy experts believe this could eventually lead to the false challenging of large numbers of ballots, perhaps in numbers even larger than the eventual margin of victory in a state.
“This pre-election period is really like, chaos is the strategy,” said Lizzie Ulmer, a senior vice president at States United Democracy Center, a nonpartisan democracy watchdog organization that works with state officials in both parties. “All of this litigation is really around throwing sand in the gears in our election system, and then being able to point to that as an example, saying, ‘See, it doesn’t work, so you shouldn’t trust it.’”
A tidal wave of disinformation
Mr. Trump leaned heavily on social media to spread false claims about the 2020 election, marshaling widespread support and fervent beliefs in fake claims that culminated in the Capitol riot on Jan. 6.
And the internet is particularly primed this year for a torrent of disinformation to reach an eager audience.
Elon Musk, the right-leaning billionaire, bought Twitter (now called X) and removed significant guardrails against election disinformation. A supporter of Mr. Trump, he has quickly become one of the most prolific spreaders of false conspiracy theories about the election.
On platforms owned by Meta, including Facebook, political misinformation is harder to track after the company removed transparency tools that journalists and researchers used to monitor the sites.
Already, false claims of voting machines “flipping votes” have proliferated on X; one county Republican Party in Nevada even spread such fake allegations.
It is in this social media landscape that an attempt to subvert the election could gain grass-roots heft, as supporters primed for four years to believe elections are corrupt pounce on deceptive and false reports or exploit small examples of human error into broad narratives about rigged elections.
“We all have to understand and give grace,” Gabriel Sterling, the chief operating official in the Georgia secretary of state’s office, said at an election-related event in Michigan last month. “With millions of people doing millions of processes with millions of votes and millions of pieces of paper, human beings make mistakes. Mistakes do not fraud make. Understand that.”
He added: “The lack of understanding of how these processes work can be exploited, and they have been exploited — for political reasons, for money-raising reasons, for sour grapes reasons. That’s the reality.”
An extremely close race
Polls have shown the contest between Mr. Trump and Vice President Kamala Harris to be effectively tied for months, with the majority of both national and statewide polls showing the race within the margin of error.
In states where the eventual margin of victory for either candidate is extremely small, recounts and the reviewing of provisional ballots could be slow and combative. And new litigation could seek to challenge certain ballots or processes.
Take Pennsylvania, for example. If we were to envision a scenario where the margin dividing the candidates was extremely small, the winner could be decided by provisional ballots cast by voters whose eligibility was uncertain and must be determined after the fact. Election officials in Pennsylvania do not review provisional ballots until they have completed counting all mail and in person votes, often days after the election.
The process of opening and checking provisional ballots is both time-consuming and combative, with representatives from each party able to contest a ballot’s validity. The final arbiters in Pennsylvania are county boards of elections, though a challenge could end up in courts.
Chet Harhut, an election official in Allegheny County, cautioned that the process could take time. “I think you’re going to have to have some patience with Allegheny with provisional ballots,” he said at an election-related event last month in Michigan. “In 2020, we had 17,000 provisional ballots cast. And so they take time to canvass.”
All of this could leave a window of uncertainty ready to be exploited by false claims of rigged processes in an already toxic stew on social media.
Post-election battles
In 2020, the post-election litigation period was when the effort by Mr. Trump and his allies to subvert the results of the presidential race became clear, from a flurry of lawsuits to a frantic attempt to stop certification of the election to organizing slates of fake electors in several states. It was also an exceptionally haphazard and disorganized effort with a number of competing legal theories and teams.
This year, the Trump campaign and the Republican National Committee have created a highly organized and structured legal apparatus focused exclusively on what they call “election integrity,” bringing dozens of seasoned lawyers into the operation.
As they showed in 2020, all manner of lawsuits are likely to be filed. But Trump allies have been zeroing in on certification as a potential flashpoint in a post-election battle.
In the aftermath of the 2020 election fight, Congress passed the Electoral Count Reform Act, which clarified that governors had the sole authority to send their state’s official slate of electors to Congress, taking away the ability of state legislatures to send alternative slates.
But the law also set a hard deadline for states to certify the election and send slates of electors to Congress. This year, that deadline is Dec. 11.
Challenges to certification would be designed, at least in part, to try to trip this deadline. Litigation that keeps questions about the election open past the certification deadline — or wayward county boards simply refusing to certify the election, citing fraud — could create prolonged uncertainty.
Most legal experts agree that both state and federal law are clear that certification is a mandatory process, and they are confident that courts will force recalcitrant local officials to certify elections in time to meet key deadlines. Just last week, a local judge in Georgia found that local election officials do not have the power to refuse to certify election results, finding the process to be mandatory and one that must meet critical deadlines.
At the same time, the Electoral Count Reform Act is a new law, one that has not been tested in court, and a rogue state legislature that attempts to send an alternate slate of electors or a board that misses a certification deadline could test the law’s strength, or its constitutionality.
But as it is written, experts see the new law as a clear directive.
“There is little risk that a court would find grounds to choose the legislature’s slate over the slate that the governor certifies,” said Norm Eisen, the executive chair of the State Democracy Defenders Fund, a bipartisan election watchdog group.
To Congress, or the Supreme Court
If a presidential candidate seeking to subvert the election manages to thwart the many checks in the system — perhaps finding a like-minded judge to rule on specious legal challenges or finding a local election official willing to disrupt the certification process — one of the other two branches of government would still have to act.
The Supreme Court does not have a specific role defined in the electoral process and has historically tried to stay out of political and electoral fights. In 2020, even with a 6-3 rightward majority, the court was hesitant to become involved during the attempt at overturning the 2020 election.
But significant challenges or disagreements could nonetheless end up before the Supreme Court, as happened in the disputed 2000 presidential election between George W. Bush and Al Gore.
Congress, however, does play a constitutionally defined role in certifying the presidential results and the slates of electors from the Electoral College, on Jan. 6. In the 2020 election, this process was disrupted by Republicans who voted to challenge several slates of electors and were able to do so with a single protest from each chamber.
Under the new, challenging a slate of electors will now require a vote from 20 percent of each chamber — a higher bar, but one still likely to be cleared by extreme party loyalists from both sides.
However, sustaining a challenge would require a majority in the Senate, which could be a tough battle with more moderate senators unwilling to entertain overturning the popular vote of a national election. Should they achieve that very difficult task and prevent either candidate from reaching a majority of Electoral College votes, the House would select the president, with each state’s delegation receiving one vote. Republicans control more delegations than Democrats.
Experts were buoyed in their hopes that Congress would not overturn the election by referring back to the successful bipartisan passage of the Electoral Count Reform Act.
“Many in Congress who helped draft the E.C.R.A. voted to abide by its terms,” Mr. Eisen said. So sustaining a full challenge to a state’s slate of electors based on faulty evidence would be “a practical and political bridge too far.”
The post Could the Vote Be Contested Again? 5 Threats to a Smooth Election. appeared first on New York Times.
