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Analysis

How Bad Could the 2024 Election Be?

The next presidential election could trigger a constitutional crisis.

February 1, 2022
Trump supporters storm the U.S. Capitol on January 6, 2021
Associated Press

You’re read­ing The Brief­ing, Michael Wald­man’s weekly news­let­ter. Click here to receive it every week in your inbox.

Some­times, like a Shakespeare anti­hero confid­ing in the audi­ence, Donald Trump blurts out his true motives. This week he did it again. Lawmakers who want to tweak the Elect­oral Count Act, accord­ing to Trump, are essen­tially admit­ting that “Mike Pence did have the right to change the outcome. And they now want to take that right away. Unfor­tu­nately, he didn’t exer­cise that power. He could have over­turned the elec­tion!”

All this came after Trump told a Texas rally that prosec­utors invest­ig­at­ing him are “racist” and urged support­ers to stage massive, menacing protests in the cities where he faces legal action.

In a Q&A for Sunday’s Wash­ing­ton Post, Jennifer Rubin asked me for the worst-case scen­ario for the 2024 elec­tion. The truth is that as bad as 2020 was, it could be worse next time around. Trump’s coup try was clown­ish, incom­pet­ent, chaotic. (Remem­ber the Four Seasons Total Land­scap­ing? Or hair dye mixed with flop sweat pour­ing down Rudy Giulian­i’s face?) Since then, the profes­sion­als have taken over. State legis­latures domin­ated by proponents of the Big Lie have laid the legal found­a­tion for a genu­ine consti­tu­tional crisis in 2024.

How could it happen?

Elec­tion deniers are running for secret­ary of state or attor­ney general in many states. The cent­ral argu­ment for their candid­acy is that they would not have certi­fied the 2020 elec­tion results, as required by law, after voters chose Joe Biden. If elec­ted, they would not hesit­ate to try to block certi­fic­a­tion in 2024. Some are seek­ing jobs as elec­tions admin­is­trat­ors, where they could use their author­ity to tilt turnout. They could, for example, select­ively reject provi­sional ballots from communit­ies of color. 

Separ­ately, lawmakers are schem­ing for the power to nullify elec­tions. Some believe (bizar­rely) that the Consti­tu­tion itself gives them the power to reject elec­tion results. In seven states, legis­lat­ors have proposed bills to form­ally give them­selves that author­ity. Fortu­nately none has passed, and, under any reas­on­able read­ing of the Consti­tu­tion, those bills would be uncon­sti­tu­tional. But this disreg­ard for consti­tu­tional norms is alarm­ing and danger­ous.

The smal­lest tech­nical dispute could trig­ger a nulli­fic­a­tion attempt. In 2020, some Wiscon­sin legis­lat­ors argued that the results were invalid because elec­tions offi­cials offered mail-in ballots to resid­ents of nurs­ing homes without first visit­ing the facil­it­ies, as required by stat­ute. (Of course, the pandemic made such visits impossible.) A similar tech­nical legal viol­a­tion could serve as a pretext for a state offi­cial to reject future results. 

And new laws in Arkan­sas and Geor­gia recently gave state author­it­ies the power to remove and tempor­ar­ily replace local elec­tion offi­cials. They could, for example, remove elec­tion offi­cials in Fulton County, Geor­gia, on a pretext, install their own candid­ate, and throw out ballots in the Atlanta area.

Would the Supreme Court step in to protect the sanc­tity of our elec­tions? The Court declared most recently in 2020 that once a state legis­lature has decided that voters choose the pres­id­ent, it cannot step in and undo their votes. That’s encour­aging. But in the last decade, the justices have refused to strike down even a single restrict­ive voting law. I would prefer not to test their commit­ment to voting rights in a crisis.

Fixing the Elect­oral Count Act — a good idea — would not stop these mach­in­a­tions in the states. Far more import­ant would be clear national stand­ards on things such as vote by mail and when ballots must be coun­ted. The Free­dom to Vote: John Lewis Act is the most import­ant step to stop elec­tion subver­sion of all kinds.

For the first time, a national leader argues that our demo­cracy is fake. Over a year after the elec­tion, 70 percent of Repub­lic­ans think Trump really won. That’s new and scary. But some­thing else — some­thing more encour­aging — is also happen­ing. A demo­cracy move­ment, galvan­ized by Trump’s lies, mobil­ized around the campaign for federal legis­la­tion. It’s the biggest push for voting rights in half a century — a coali­tion of breadth, diversity, and depth. Perhaps the story of the next two years will be the rising right­eous anger of this move­ment fight­ing for demo­cracy.