Trump’s Best Shot at Overturning the 2024 Election

It probably won’t be like this in January of 2025. Photo: Kent Nishimura/Los Angeles Times via Getty Images

It appears that the November general election will almost certainly be a rematch between Joe Biden and Donald Trump. So, if Trump loses like he did in 2020, will we see him contest the election’s outcome once again? These days he never acknowledges that it’s possible for him to lose an election unless it is “rigged.” Trump seems to embrace a sort of butterfly theory of “election interference” whereby any words or actions adverse to his interests destroy the contest’s legitimacy. He’s shown abundant willingness to manufacture or promote allegations of crucial misconduct by election officials, judges, the news media, or just plain voters. Worse yet, his followers seem eager to accept his conspiracy theories.

So it would be prudent of those who value democratic norms to anticipate what avenues the Trump might be willing to pursue to make himself the 47th president, even if voters reject him. The ultimate stratagem Trump hoped to use to overturn the 2020 results, a gambit by the vice-president to deny or delay the certification of electoral votes won by his opponent, will not be available this time, since Kamala Harris will be occupying that position. In addition, the legislation enacted in 2022 reforming the Electoral Count Act of 1887 has made congressional challenges to state-certified electoral votes much more difficult. Above all, the example of the Capitol riot and its consequences for participants (and possibly even for Trump) makes another direct assault on the electoral-vote tabulation process unlikely.

But as legal experts Lawrence Lessig and Matthew Seligman explain in a New York Times op-ed, there is one open avenue for chicanery that Trump might exploit if another muddy post-election environment occurs:

After the assault on the nation’s Capitol three years ago, we worked through every strategy we could imagine for subverting the popular will by manipulating the law. What we found surprised us. We determined that the most commonly discussed strategies — such as a state legislature picking a new slate of electors to the Electoral College — wouldn’t work because of impediments built into the Constitution. We also concluded that the most blatantly extreme strategies, such as a state canceling its election and selecting its electors directly, are politically unlikely.

The scenario we see as the most alarming was made possible by the Supreme Court itself. In a 2020 decision, the court held, in our reading, that state legislatures have the power to direct electors on how to cast their electoral votes. And this opens the door to what we think is the most dangerous strategy: that a legislature would pass a law that directs electors to vote for the candidate the legislature picks.

The case they are talking about involved legislatures instructing “faithless” electors to vote for the popular-vote winner in their states. But the Supreme Court decision could arguably be used to justify a legislature’s instruction that electors vote for someone other than the popular-vote winner …someone, for example, belonging to the political party that controls that legislature. That’s what Lessig and Seligman fear. They should know whereof they speak: Lessig was actually one of the attorneys defending “faithless electors” in 2016, while Seligman was one of the experts behind the Electoral Count Act reform effort in 2022. Obviously the availability of that stratagem depends on who controls the legislature in certain battleground states, but right now Republicans are in charge in Arizona, Georgia, New Hampshire, and Wisconsin, and could regain control of Pennsylvania in November.

If Lessig and Seligman are right, what can be done about it? There are two safeguards, they suggest:

Congress and legislatures should act now to intervene. Congress could amend the federal law governing electoral votes by declaring that any post-election change of the results by a state legislature would not count as votes “regularly given.” States could cement the requirement that electors are to follow the people’s will. Neither path is assured, but we are certain of this: It is a rocky road ahead.

Nothing can stop Trump (or some other sore loser) from undermining faith in the election system or clogging the courts with frivolous lawsuits alleging fraud. Perhaps the absence (or so we hope) in 2024 of the pandemic conditions that led many states in 2020 to adopt emergency election procedures could reduce the broken ground on which “rigged election” conspiracy theories can grow. In any event, no one should be blindsided if MAGA folk come up with new ways to turn defeat into victory, short of the military coup d’état they don’t have the power to generate. It’s time to keep eyes wide open.