It’s Been Four Years. How Ready Are We for ‘Stop the Steal 2.0‘?
It’s Been Four Years. How Ready Are We for ‘Stop the Steal 2.0‘?
We strengthened our election system against some of what Trump tried in 2020, but there are still holes.
IN HIS OCTOBER 27 RALLY in Madison Square Garden, former President Donald Trump cryptically alluded to a “secret” election-related plan with House Speaker Mike Johnson. “I think with our little secret we are gonna do really well with the House, our little secret is having a big impact, he and I have a little secret, we will tell you what it is when the race is over,” he said. Johnson didn’t deny that a secret scheme is in place. He even confirmed its existence, saying in a statement: “By definition, a secret is not to be shared—and I don’t intend to share this one.”
We now know quite a lot about the schemes that Trump and his co-conspirators hatched to steal the election four years ago—the lies, the phony slates of electors, the pressure campaign on Vice President Mike Pence—and how they culminated in the horrors of January 6th. Former Rep. Liz Cheney called it “a seven-part plan,” which was fleshed out in detail in the House January 6th Committee’s final report.
Which naturally raises the question: If Trump and his supporters were to follow the 2020 game plan, how far would they get? America had four years to protect its electoral system against the kind of attacks Trump attempted last time. How wisely did we use those four years?
Anyone who follows the news won’t be surprised to hear that Congress didn’t go far enough to stop a steal. It made a few changes to the Electoral Count Act, which governs the process for certifying the Electoral College totals, but significant vulnerabilities remain. Here’s an analysis of 2020 versus today, keyed to each of the seven parts of Trump’s post-2020 election plan:
1. Trump led a massive effort to spread false and fraudulent information to the American public claiming that the 2020 election was stolen from him.
This step has only gotten more serious.
Trump has already been using election lies to lay the groundwork for a possible loss.
Republicans have also aggressively filed at least 130 longshot lawsuits designed to stoke skepticism around the legitimacy of a Kamala Harris win in advance. Democrats have filed lawsuits, too, in order to halt or undo anti-voter efforts on the Republican side. They include assaults on voting by mail, attempts to change the process for counting and certifying votes, purges of registered voters that go beyond legitimate updates of the voter rolls, allowing “poll monitors” greater access to voting precincts, challenges to overseas ballots, opposition to students using school IDs to vote, and intimidating surveillance (not to mention outright destruction) of dropboxes.
So far, as in 2020, the GOP-led lawsuits have not gotten Trump very far legally—with the prominent exception of a case from Virginia, in which the Supreme Court last week overruled the lower courts to allow Gov. Glenn Youngkin to violate federal law and purge voters, including some number of legitimate voters, from the state’s rolls in advance of the election under the false specter of illegal immigrant voting.
These lawsuits will continue past the election if it seems they can help get enough ballots out of the way to flip the outcome in key battleground states. Depending on how tight the vote count is, the Trump camp is betting that if any of the cases get to the Supreme Court, the 6–3 majority might hand him the election.
A secondary goal is to tie up the vote-certification process in litigation in enough states to make it impossible for the electors to know what to do when they meet on December 17, 2024 to cast their votes for president. (More on that below.)
2. Trump corruptly planned to replace the acting attorney general with a crony so that he could use the Department of Justice to support his fake election claims.
Of course, Joe Biden is the president now, so this step is irrelevant. But it provides a window into a second Trump administration—and why Harris must win.
Trump has promised to use DOJ to secure retribution against people like Biden, Kamala Harris, Manhattan District Attorney Alvin Bragg (who secured a 34-count criminal conviction against Trump), Special Counsel Jack Smith (whom Trump promised to deport from the country), and members of the House January 6th Committee—as well as unidentified lawyers, political operatives, “illegal voters,” election officials, judges, and court personnel whom he has grievances against. This will undoubtedly start on Day One of his administration.
3. Trump corruptly pressured Vice President Mike Pence to refuse to count certified Electoral College votes in violation of the Constitution and federal law.
Harris is the vice president now, so this step is also irrelevant. Even so, the Electoral Count Reform Act of 2022 now makes clear that her role is purely ministerial. So if Trump and Johnson managed to present a bogus slate of electors to her, federal law now arguably requires her to rubber-stamp that outcome—demolishing the presidential election process for future generations altogether.
4. Trump corruptly pressured state election officials, and later state legislators, to change election results.
This step is already underway in 2024 and is sure to continue if Trump loses. There are over 10,000 county-level elections that must be certified beginning on Tuesday. Trump has 37 election deniers on the election boards of the 5 most populous counties in Arizona, Georgia, Michigan, Nevada, North Carolina, and Pennsylvania, including 20 who voted not to certify results in the past. (An analysis by scholars at Brookings concluded that of the 50 counties that post the highest risk for refusing to certify, the most concerning are in Arizona, Georgia, Nevada, and Pennsylvania.) This is probably just a fraction of a much larger pool of election deniers in positions of power across the country.
The canvassers’ job is to count votes and certify them by late November. If there’s an irregularity, state law varies on the processes and timing for recounts. (For some it’s automatic; for others, a candidate must request a recount.) It’s illegal to flat-out refuse to certify. Last month, a Republican supervisor in Cochise County, Arizona who declined to certify the 2022 midterm election pleaded guilty to a misdemeanor. But that won’t stop these folks from trying, which will push the election to the courts.
Once the counties certify their votes, those counts go to the governors who certify the election for each state and send the results to Congress. That process will also most certainly entail litigation, which must be completed by the date the electors meet. Courts are expected to direct counties and states to certify as required by law, but if a governor were to refuse, the next step is unknowable. The Electoral Count Act doesn’t address this kind of clash or whether Congress has the power to step in and resolve it somehow.
Aside from courts, a statewide election administrator or governor could intervene to force the counties to certify. In September, more than 20 bipartisan ex-governors—including prominent Republicans Jeb Bush and John Kasich—joined a campaign to urge their successors to certify. Democrats control governorships in most swing states—Michigan, North Carolina, Pennsylvania, Wisconsin, and Arizona—so the county-level certifications pose a greater problem than the threat of a governor blowing up the election.
If the county certifications remain in flux by December 11—the deadline this year under federal law by which governors must certify election results—the question becomes: What is the actual count that a governor must certify? The Supreme Court held in Bush v. Gore back in 2000 that the federal deadline supersedes a state’s recount effort (in that case, Florida). If the count isn’t done, too bad—a governor might be pressured to certify an undercount. So delay through the courts is key weapon in the Trump arsenal because it could, in theory, force a governor to certify the loser.
5. Trump’s team instructed Republicans in multiple states to create false slates of electors and transmit them to Congress and the National Archives.
The Electoral Count Act now makes clear that only one “certificate of ascertainment” (or slate) of electors is possible, and that it is “conclusive” in Congress—so producing multiple slates in order to confuse things is a less appealing option for pro-Trump miscreants intent on stealing the 2024 election. Moreover, the multiple prosecutions of state-level participants in the 2020 fake electors scheme should be a deterrent for a redo of 2020.
However, that doesn’t close the book on this problem. The GOP has made noise about reviving a constitutional theory they tried last round but didn’t quite clinch in the Supreme Court: the independent state legislature theory, which claims that only state legislatures can ultimately administer elections under the Constitution. Courts can’t, election administrators can’t, and Congress can’t.
Under this theory, GOP-dominated state legislatures could separately meet and declare the winner of their states’ Electoral College votes, overriding the popular vote and pre-existing state law. The Electoral Count Act now tries to avoid this by declaring that only the “executive of each state” (i.e., the governor) can certify the Electoral College slates. But Trump could bring a constitutional challenge to this language, arguing that state legislatures have the final say. Although the U.S. Supreme Court’s right-wing majority declined to adopt the independent state legislature theory in Moore v. Harper in 2023, it didn’t reject it altogether, and there are a number of sympathizers to the theory on the Court. So this ploy could theoretically work.
6. Trump summoned and assembled a violent mob in Washington and directed them to march on the U.S. Capitol, with the goal of terrorizing Republican members of Congress into objecting to the swing states’ electoral votes.
Trump could try to do this again, but he no longer controls the National Guard or any law enforcement agencies. But he may well once again resort to incitement and threats against election administrators and members of Congress to force them to obstruct on his behalf.
Under the changes to the Electoral Count Act, it now takes one-fifth of both houses of Congress to lodge an objection to a state’s electors (87 representatives and 20 senators), but it’s not unthinkable that Republicans could reach those numbers. To sustain an objection, and thus throw out a state’s electoral votes, a simple majority of both chambers is needed. It is essential that Democrats block any objections because they are almost certainly guaranteed to lose a “contingent election.”
The Electoral Count Act remains a flawed law; it is vague, and could still allow for frivolous objections while leaving uncertainties in how to resolve disputes. Under the text of the statute, every election denier in Congress could file their own objections against any and all states, and so long as they can get 86 other members of the House (or 19 other senators), they can cause a two-hour delay for debate on each objection. If there are enough two-hour debates for frivolous objections that there could in theory be no winner by inauguration day—all because 20 percent of members of one chamber of Congress decide to obstruct certification through bad faith challenges. Anyone who doubts that Trump-supporting Republicans could keep Congress frozen for the two weeks from January 6, 2025 to January 20, 2025 should think back to how House Republicans managed to keep that chamber frozen for a full three weeks last year in the fight over Kevin McCarthy’s speakership.
The new Congress is scheduled to be seated on January 3, but if key races are held up in recounts or the courts, or if the election results keep the House in Republican control, then Speaker Johnson (assuming he is returned to the speakership) will preside over a contested election. Under the Twelfth Amendment, the president is chosen by the majority of state delegations in the House. A majority in the Senate does the same for the vice president.
In such a contingent election, Trump would win if Republicans take both houses of Congress; if Democrats take the House, a takeover scenario is less likely. There is also the possibility of a split ticket, if Democrats held the Senate while Republicans kept the House.
The revisions to the Electoral Count Act attempt to address this problem too, by providing that if a particular state can’t certify its electors, those electors get dropped from the total that is required to choose a president. (For example, the number required to win would go from 270 Electoral College votes to 256 if Georgia fails to certify and gets its 16 votes cut.) Here again, however, challengers could argue that Congress does not have the authority to make this change at the federal level under the independent state legislature theory—only state legislatures can change the allocation of their states’ electors, including by dropping out from the total altogether.
If the dispute hits the courts, the Supreme Court could refuse to hear it under what’s known as the political question doctrine—or, more likely, it could rely on a recent ruling to help Trump once again. In rejecting attempts to keep Trump off the Colorado ballot for having taken an oath to the Constitution and engaged in insurrection under Section 3 of the Fourteenth Amendment, the majority reasoned in Trump v. Anderson—without any dissents—that a single state can’t dictate a federal election. The same rationale could be employed here.
Or—and here’s a doozy for you—if neither party gets 26 states in a contingent election by inauguration day, the House speaker resigns and becomes acting president under the Presidential Succession Act until the election controversy can be resolved, or all the way through a full presidential term if it isn’t resolved. If for whatever reason there is no speaker, the Senate president pro tempore (currently Patty Murray [D-Wash.]) becomes acting president.
7. As the violence was underway on January 6th, Trump ignored pleas for help and failed to take immediate action to stop the violence by instructing his supporters to leave the Capitol.
Donald Trump increasingly teases the possibility of violence—but hopefully between the National Guard and the various federal law enforcement agencies, any rioters wouldn’t get near the Capitol if a repeat of the mob attack on the building were attempted. Still, the existence of mobs may yet intimidate Republicans on the fence.
WE ARE OBVIOUSLY IN A VERY DIFFERENT PLACE than we were in 2020. Donald Trump no longer controls anything other than his cult of personality. But that cult of personality is what nearly enabled him to steal the 2020 election, and it could succeed for him this time around. He could sic his extremist followers on local and state officials and ratchet up the violent rhetoric knowing that his pal Elon Musk controls the algorithms on X. If those efforts fail, he and Johnson could work on Congress to intimidate the GOP into throwing out legitimate electoral votes. Last time, Trump’s efforts to steal the election failed because he could not get a majority of both chambers to sustain any of his minions’ frivolous objections. This round, his reach extends far more deeply into the bowels of local election processes and the people who believe the Big Lie and are hellbent on avoiding a redo of a Democratic win for president.
There are a few bottom lines here. Courts must uphold the law when local officials defy it. Governors must have a valid count to certify and do their duty to certify it. State legislatures must stay on the sidelines, and if they try to pass a law electing Trump, courts must slap them down. Democrats must win at least one chamber of Congress to be sure of blocking any frivolous challenges.
But even this might not be enough if election deniers are able to launch so many objections that no winner is certified by inauguration day.
The plain reality of our messy post-election period is that our system relies on all government officials acting in good faith from the local level on up to Congress. Until Donald Trump, this usually was not a problem. But now, we are dependent on politicians and the courts to uphold the will of the people should Harris win the election.
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