How to Fix Our Remaining Election Vulnerabilities – The New Yorker

Heading into the 2022 midterms, one of the biggest questions was to what degree the machinery of future elections would be controlled by politicians who campaigned on the premise that the 2020 Presidential vote was rigged. If enough Trumpian candidates won, the former President would have the chance in 2024 to do what he tried to do last time: steal the Presidency. And, indeed, the New York Times found that more than two hundred candidates who called the 2020 result into question were elected to various offices two weeks ago.

But, in the five crucial swing states that are almost sure to decide the next election, Republicans almost uniformly failed. In Arizona, Democrats won the races for governor and for secretary of state. They did the same in Michigan and Wisconsin, and also kept the governorship in Pennsylvania. In Georgia, Democrats came up short—the Republican governor, Brian Kemp, and the secretary of state, Brad Raffensperger, coasted to reëlection. But they did so, at least in part, after standing up to Donald Trump in 2020 and refusing to take action on his unfounded claims of fraud.

I recently spoke by phone with Richard L. Hasen, who is the director of the Safeguarding Democracy Project at U.C.L.A. and an expert 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 next Presidential election, what a landmark case before the Supreme Court could mean for how the United States conducts future elections, and why laws trying to restrict voting access so often fail.

I was hoping to divide this conversation into how you’re thinking about threats to democracy in 2024, and how you’re thinking about them more broadly. What’s your thought about the former after the midterms?

I wouldn’t go so far as to say that we dodged a bullet, but I would say that I am somewhat less concerned than I was two weeks ago. I was most worried about governors and secretaries of state who were election deniers. Either they’re lying, in which case they can’t be trusted to fairly report election results, or they’ve been duped, in which case they’re not smart enough to be running or certifying elections. The fact that those folks lost in all the places that matter is a big deal.

There are more than four states where election skeptics won secretaries-of-state races. That’s worrisome, and it shows a lack of commitment to the rule of law, but those states are not going to be swing states. Furthermore, at least the Michigan legislature, and probably the Pennsylvania legislature, are no longer in a position where Donald Trump could try to manipulate them into putting in a second fake slate of electors.

Right, and it is very difficult to have an Electoral College majority without either Michigan or Pennsylvania.


In most states, the governor and the secretary of state certify election results. Was the fear there that they would not certify a fair vote, or that they would try to change the totals? How did you see the danger going into 2024?

There was no single danger. One of the things that became very evident from the attempt to steal the election in 2020 is that the Presidential vote can be manipulated in so many places. For example, 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 not to certify, and that almost happened. One abstained, and the other one gave this heroic speech, and then 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 is very important. A secretary of state who lacks scruples could say, “I do think that the election was stolen, and, therefore, the legislature should come in and appoint its own electors.” There are lots of ways that this can happen.

These are still theoretical possibilities—which is why Congress urgently needs to pass that E.C.A. reform bill, which looks like it has a good shot in the lame-duck session. Because the system depends on people acting in good faith, and many of the people who’ve indicated that they would not act in good faith lost their elections, I am somewhat less terrified now.

What threats remain to the 2024 election?

Congress may not pass E.C.A. reform, and that means there are potential ways that Trump could try to get legislatures to flip. Let’s say the election comes 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 think there’s fraud, and we’re going to appoint a different slate of electors.” There might be a fight over which electors should be accepted. If Republicans control both houses of Congress, and Kamala Harris is the Democrat who’s presiding over the Electoral College count, you can imagine a situation where there’s some kind of stalemate, or something that could mess with things.

It’s much less likely, in part because Governor Katie Hobbs, the Democratic candidate who won in Arizona, presumably would be sending in a slate of electors that reflected the views of the people, and that should suffice under the E.C.A. We saw John Eastman making arguments in 2020 that the E.C.A. is not itself constitutional, and legislatures have more power. There are still ways that it could happen. It’s just not easy to see how.

The reason you said, “If Republicans control both houses of Congress,” in terms of certifying the 2024 Presidential election, is that the certification will be done by the Congress that is elected in 2024, correct?

Right, it’ll be the new Congress that comes in.

Moving to E.C.A. reform: What is the E.C.A., why does it allow for so 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 rules for how Congress was supposed to go through the process of counting Electoral College votes was uncertain. In 1887, the E.C.A. was passed—it has a bunch of rules for how Electoral College votes are counted. Those rules are written in ways that are in some cases opaque or ambiguous. For someone like Trump, who was looking for ways to try to manipulate the process, there was enough manipulatable language in there that you could try to affect the outcome of the election. For example, when Trump argued that Vice-President Mike Pence had the power to throw out Electoral College votes of states where Trump had claimed that there was fraud, Trump was relying on provisions in the E.C.A. which indicate that the Vice-President presides over the meeting.

A better 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 in the federal law that says that when there is 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 in which there are irregularities, or fraud, which he claimed were going on, and that that gave the legislature the power to do these kinds of things.

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