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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.