Buckle Up: Here’s How Republican Attempts to Steal the 2024 Election Could Play Out in the Courts
The road ahead is looking bumpy.
LAST THURSDAY, THE GEORGIA STATE ELECTION BOARD passed a new rule that empowers board members—whose traditional role has been to ministerially1 certify the number of votes cast for each candidate—to condition certification on a “reasonable inquiry that the tabulation and canvassing of the election are complete and accurate and that the results are a true and accurate accounting of all votes cast in that election.” On its face, this change might seem technical and benign. But as A.B. Stoddard argued last week in The Bulwark, the move forebodes a disturbing possibility: that partisan board members could cynically refuse to certify results for any flimsy reason, thereby mucking up and possibly thwarting a legitimate win. This could become a problem for Kamala Harris this November—especially if the tactic spreads, as expected, to other swing states.
What are the legal questions in play here?
First, some background: Across the country, the job of county canvassing boards has traditionally not been investigative. It’s merely to “verify and tally precinct-level election returns and approve the results”—not to act as sleuths sussing out whether some ballots were validly cast. States have in place various processes for audits and recounts, and courts can step in when appropriate, but county canvassing boards are not suited to the job of conducting electoral investigations.
Yet in 2020, election officials in some counties took it upon themselves to look behind the vote and refuse to perform their jobs based on allegations of “fraud”—allegations that in every case proved bogus. In Michigan, the two Republican members of the Wayne County Board of Canvassers refused to certify the final results for the county as part of the larger nationwide scheme to challenge the legitimacy of Joe Biden’s win over Donald Trump; the maneuver deadlocked the board until public pressure finally forced the members to certify the election results. Something similar happened in Otero County, New Mexico in 2022 when the Republican-led canvassing commission withheld approval of the primary election results, claiming fraud in connection with the voting machines, until the courts stepped in and ordered them to perform their ministerial duty to tally the ballots. All told, according to an analysis by Rolling Stone, “Republicans have refused to certify election results at least 25 times since Trump lost the 2020 election.”
Looking ahead to November, experts predict chaos: “I think we are going to see mass refusals to certify the election,” said Democratic election lawyer Marc Elias.
THE FACT THAT TRUMPIAN ENABLERS are trying to game the system rather than win the election by persuading swing voters with honest policy debates should come as no surprise. But how this could actually play out is difficult to predict. In 2020, litigants in dozens of cases asked the U.S. Supreme Court to step in to resolve ballot-related disputes arising in large part from changes to voting practices occasioned by the COVID-19 pandemic. It’s possible a similar rush to the courts will occur this fall.
How will the right-leaning Supreme Court, which did not decide in Trump’s favor during the 2020 election aftermath but has in the years since handed him win after constitutional win on terms that are dubious at best, respond to a request that it step in and order canvassing boards to do their jobs by tallying and certifying the votes actually cast? And what impact will new rules like the one in Georgia, which could pave the way for fanciful fraud claims to carry the day in tight races, have on the merits of those cases?
On the second question, it is noteworthy that just this term, a divided Court in Allen v. Milligan refused to adopt the so-called “independent state legislature” theory that would have invalidated new voting and election rules that were not passed by actual state legislatures but instead, as in the case of Georgia’s new rule, by unelected administrative officials. The theory would also have usurped voting-related orders issued by state courts under state constitutions. Because state constitutions deserve respect and deference, the decision in Allen was correct. But it could come back to haunt Democrats seeking to upend spurious determinations by inexpert election canvassers that elections cannot be certified based on whiffs of fraud circulated on the internet.
Bear in mind that typically, fraud allegations are raised by a losing candidate in court after an election is certified. Presumably, state court judges can for the most part be relied upon to do the right thing and resolve such cases on the basis of hard evidence and established law.
But what if the deadline for certification passes without an official tally being registered? Under Georgia law, the deadline remains in full force, despite the latest rule. If a flawed count were nonetheless forced through on the grounds that the law required some certification—any certification—by a certain date, the matter would go to the courts. And in the courts, there’s a case that could present some serious problems for the Harris-Walz side of the ledger.
You may have heard of it: Bush v. Gore.
HOP INTO THE TIME MACHINE: As the vote tallies were reported on the night of Election Day, November 7–8, 2000, George W. Bush had a 600-vote margin of victory—less than 0.1 percent of the total votes cast in the state. Under Florida law, a spread of less than 0.5 required a recount. Three days later, a machine recount had narrowed the difference to 327 votes. According to Gore’s team, a confusing “butterfly” ballot design in Palm Beach County prompted around 3,400 residents to mistakenly vote for Pat Buchanan, the right-wing third-party candidate, when they meant to vote for Gore. Other ballots cast in the state were not punched through completely, resulting in “hanging chads” that were difficult to read, multiple votes for the same office, or no vote at all. The Florida Supreme Court ordered a selective hand recount of just those ambiguous ballots.
The Bush campaign asked the U.S. Supreme Court to override the Florida Supreme Court and halt the ballot-counting. On December 12, 2000, a 7–2 majority sided with Bush. Somewhat bizarrely, it concluded that the absence of precise standards for deciding how to resolve disputed ballots on hand counts was a violation of the Fourteenth Amendment’s Equal Protection Clause. A smaller majority (5–4) also reasoned that, read in tandem with a different provision of Florida law, the recount could not reasonably conclude prior to the December deadline for Electoral College certification set by federal law. All of this was suspect as a matter of sound judicial reasoning. As Justice David Souter wrote: “If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review.”
The ruling effectively awarded George W. Bush Florida’s twenty-five Electoral College votes, handing him the presidential election despite his having lost the country’s popular vote to Al Gore.
The reason I mention Bush v. Gore is that the Court in that case chose to halt a state court-ordered ballot recount based on its reading of a vague deadline contained in a Florida law. This time around, if certain states cannot certify election results due to canvassers crying elusive fraud, Bush v. Gore stands as a ready precedent for Team Trump to argue that meeting deadlines is more important than ensuring that legitimate votes cast by American citizens are counted.
It also starkly shows how the Court—already Republican-leaning but far less than the one we have now—was willing to conclusively intervene in a national presidential election on a thin rationale. Today’s Court shows a sympathy to pro-Trump arguments that border on the frivolous; if given the chance, it will likely find ways to rule against Harris and for Trump based on nuances in state law, including deadlines, even if doing so would mean disqualifying valid votes based on nothing coming close to actual evidence of fraud.
If states were to refuse to certify votes based on fake fraud allegations on time, leaving a state’s Electoral College votes in flux, the entire matter—in theory—could go to Congress in January. If electors are not “lawfully certified” and there is no clear winner under the arcane Electoral Count Act, the matter becomes what’s known as a “contingent election.” Under the Twelfth Amendment, the House of Representatives could decide the winner, voting by state delegations—a vote that, assuming the makeup of the House does not change significantly, Republicans would win.
Lawyers who care about protecting our democracy need to prepare now for these nightmare scenarios—county officials lying about fraud, prolonged lawsuits in swing states, the intervention of a right-slanted Supreme Court, or a presidential decision made by the House of Representatives. And citizens who want to do their part to prevent these scenarios from becoming a reality should do what they can to make sure that the margin of victory is so wide that they become irrelevant. There’s no better way to shut down claims of fraudulent ballots than to win big.
In this context, a “ministerial” role is one that involves performing a function without discretion. That is, someone in a ministerial position makes sure a task is handled correctly and generally cannot make decisions or determinations that go beyond narrowly administering that task.
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