Walter Olson
If Donald Trump loses the 2024 election, it is a given that he will once again claim that he was cheated and should be inaugurated as the legitimate new president. What happens next?
As we recall from 2020, in the weeks following the election, local officials in each state proceed with the certification and reporting of results, and state officials certify the resulting slate of electoral votes and send it to Washington, DC, where a congressional joint session counts them under what will be an improved process specified by the Electoral Count Reform Act of 2022. Meanwhile, dozens of lawsuits are likely to go forward, and—if 2020 is any model, which is a big if—the courts will handle them speedily and credibly.
It’s unlikely to go as smoothly as that this time, but our mood should be one of watchful concern, not panic.
The alarm of the moment is over whether local officials will refuse to certify the results under pressure from local #StopTheSteal believers. Recently, three commissioners in Reno, Nevada, initially declined to certify the results of a primary election recount on dubious grounds. Two of the three backed down following “guidance from the district attorney’s and attorney general’s offices that certifying the vote was a mandatory ministerial function, and that [they] could otherwise face criminal prosecution.”
So that’s the first point of reference: Ordinarily, these officials’ duty to certify and report is ministerial, as was Vice President Mike Pence’s duty on January 6, and allows for no policy discretion. Trump allies have filed some lawsuits claiming such a right to exercise discretion, but they are likely to fail. (None of this means that the reported outcome of a race can’t be challenged, only that such a challenge needs to go forward in a different forum, such as a court.)
During all of this, local officials inclined to shirk ministerial duties are likely to face a broader public campaign than last time arguing that the election outcome was rigged and illegitimate. The Washington Post quoted a project director at one large Trump-allied nonprofit as saying, “As things stand right now, there’s a zero percent chance of a free and fair election. I’m formally accusing the Biden administration of creating the conditions that most reasonable policymakers and officials cannot in good conscience certify an election.”
Much recent commentary has taken an alarmist tone, particularly about a rules change adopted by the Georgia state election board purporting to authorize local election board members to exercise “reasonable inquiry” before certifying a result.
In a post on Election Law Blog, Derek Muller of Notre Dame Law School dissents from this tone. He sees the new Georgia rules as “a cause of some mild concern … but nothing particularly significant, and certainly nothing likely to affect the results of the election in any formal way.”
To begin, the state board didn’t alter or enlarge the powers of local officials because it has no power to do so: “The Georgia election code already defines what election officials may do.” Whatever rhetoric may be in the air about “reasonable inquiry,” the code gives county election boards precious little scope to investigate questions of tabulation beyond, say, whether a row of numbers adds up. It also specifies the Georgia certification deadline, November 12. Courts have also generally assumed that election boards cannot use administrative means to change or nullify election officials’ responsibilities under enacted law.
None of this is meant to defend the Georgia changes: As Muller says, it’s “certainly not a good thing” and could engender public confusion or distrust to introduce an ambiguity that some locals could seize on as an excuse for delay or noncompliance (which, to be sure, they could have tried even without such an excuse).
What the rules probably don’t do is give courts any legitimate reason to countenance delay in reporting Georgia election results. In other words, though it may send a bad signal, this rules change isn’t the most significant practical hazard on the road ahead.
If the danger posed by recalcitrant county boards is not quite as formidable as some fear, what kinds of hazards to a lawful count are currently being underrated? I can think of at least two. The first would be physical interference with the movement of persons or official documents to keep the process from hitting its necessary deadlines. Such interference might be accomplished by mobs, single desperados, or even the use of deception. The second danger would be rogue behavior by a highly placed official necessary to the process, such as a secretary of state. Note that both of these methods were attempted, though without success, in the January 6 plot.
For now, I would still side with veteran GOP election lawyer Ben Ginsberg, quoted in the New York Times last month as still being confident “that the system had enough checks and balances to hold.”
