Schrödinger’s election process
American presidential elections are vulnerable. And more secure than ever.
Could the 2024 election be stolen?
If you listened to the On Point discussion on NPR this week with Jessica Marsden and Larry Lessig on Larry’s new book (with Matt Seligman), How to Steal a Presidential Election, you might have come away confused on this pressing question.
Are there, as Larry describes, alarming vulnerabilities and risks that Donald Trump could use to attempt to overturn the 2024 election — and potentially succeed this time around?
Or are we, as Jessica describes, “in a much better place in many ways than we were in 2020”?
The reality is, uncomfortably, both at once. American presidential elections are inherently vulnerable to illegal, undemocratic and authoritarian efforts to subvert the will of the people.
And a series of important steps since 2020 have made it harder than ever for would-be autocrats to pull off such a heist.
Presidential elections are shaky by nature
American presidential elections are messy. There are no national elections in this country, just 50 state-specific elections. We use a complicated (some might say antiquated) electoral college system to translate those 50 elections into one result. Each state chooses “electors” — they’re actually real people, not just numbers on a map — and those electors choose a president.
That takes some intricate mechanics. In all 50 states, election officials have to tabulate the results, various people have to certify them (if you missed our deep dive on certification, it’s here), the electors have to vote, the results have to be transmitted to Washington and then they have to be counted by Congress on January 6th. That chain of events presents a series of potential vulnerabilities for subversion, moments where bad actors could fraudulently attempt to flip the result.
Worse, conspiracy theories and disinformation about elections — spread by cynical and opportunistic attacks on our institutions from Trump and others — have led many voters to see genuine election results as fraudulent and false claims of fraud as truth.
This magnifies vulnerability of presidential elections — from elected officials feeling pressure from their supporters to subvert results to election administrators facing death threats and harassment just for counting ballots fairly. It’s a scary, multi-dimensional array of threats.
So yes, the 2024 election could be stolen.
Four key wins that make 2024 stronger than 2020
But that doesn’t make it particularly likely. First off, there is no legal way to steal an election. As Jessica describes:
Legally stealing an election is a contradiction in terms … these tactics at bottom are no different than stuffing a ballot box, and they’re the kind of tactics that we’ve seen in authoritarian regimes that have slid from democracy into authoritarianism.
So what have we collectively accomplished since 2020 to make it harder to illegally steal an election? Four key developments make a stolen election less likely this time around:
The Electoral Count Reform Act closed the most significant vulnerabilities. The landmark reform package passed in December 2022 makes it far harder to subvert a presidential election, shoring up many of the vulnerabilities that were targeted in 2020.
Election deniers failed to seize control of election administration. In 2022, election deniers running for positions that oversee elections in key states almost universally lost, at least at the statewide level. As a result, there are reasonable people in almost every crucial statewide position across the country. (Just as importantly, these results showed that democracy is an important issue for a key segment of voters.)
The Supreme Court rejected the dangerous “independent state legislature theory.” If adopted, this theory would have allowed state legislatures to flout state constitutional limits in setting rules for presidential elections and inserted significant uncertainty into state systems for election administration. Its death in June 2023 at the hands of six Justices pulled the rug out from the central notion behind Trump’s 2020 subversion strategy — that state legislatures could overrule the voters after election day.
Donald Trump is not in the White House. Unlike in 2020, the person most likely to try to steal an election no longer controls the levers of federal power. He cannot, for example, instruct the Justice Department to join his subversion campaign, as he tried to do in 2020. That, in itself, tips the scale significantly towards a free & fair election.
So it’s true, if Donald Trump loses in November, he will almost certainly look to steal the election, and there’s no guarantee he fails. It’s a possibility we all need to be prepared for (and believe me, we are). But, at the same time, he faces even longer odds of success than the last illegal heist attempt.
And for that, we should be grateful.
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If you want to hear more on these dynamics, the Harvard Ash Center is hosting a virtual discussion with Larry Lessig & Matt Seligman moderated by Protect Democracy’s Ian Bassin on April 30th. Tune in.
The signal in the noise of Trump’s ‘hush money’ drama
Amanda Carpenter has been watching Trump’s legal proceedings closely, including the (apparently sleepy) criminal trial ongoing in New York this week.
Her big takeaway:
Don’t let tawdry elements of the first-ever criminal trial of a U.S. president distract from the most chilling, autocratic aspect of these legal proceedings: How Trump deliberately puts people who uphold the rule of law in danger.
Instead of focusing on presenting a sober, respectful defense, Trump is using this trial, as well the others he faces, as an opportunity to attack the judiciary, using his tremendous profile to weaken it as an institution of accountability.
In other words, the dangerous undercurrent underneath all the Trump trials? How the former president is “inviting more violence as a method of destabilizing our democratic institutions.”
His institutional arson has become so central to American politics that we often tune it out. Trump attacks the rule of law, dog bites man. But the consequences for our democracy are more profound than any specific violation of the law could ever be.
(The latest example of this: Trump targeting prospective jurors — in violation of the gag order — leading one juror to ask to be excused.)
Read Amanda’s whole piece here.
The “other” January 6th SCOTUS case
This week the Supreme Court heard arguments in Fischer v, United States, where an alleged January 6th insurrectionist is challenging whether his actions can be prosecuted as obstruction of an official proceeding. That’s the most serious charge in hundreds of January 6th cases brought by the Department of Justice (it’s also part of Jack Smith’s election interference indictment of Donald Trump).
Kristy Parker, a former federal prosecutor, on what the case means:
The question before the court is whether the text of the statute covers physical or other interference with official proceedings, like the congressional proceedings on January 6th to count electoral votes, or whether it applies only to tampering with documentary or other “evidence.” The D.C. Circuit Court of Appeals upheld the former interpretation (as have the vast majority of lower courts to consider the issue) – which is the DOJ’s position – but several of the Supreme Court justices seemed poised to take a narrower view while at times seeming to minimize the events of January 6th.
A loss for DOJ would likely cause the reversal of a number of convictions (although most of the January 6th defendants are also charged with other lesser offenses). We won’t know for sure what it might mean for Trump until we see the decision, but Jack Smith planned for the possibility of a narrower reading of the statute and has argued that Trump’s alleged obstruction involved, among other things, the falsification of documents, i.e., electoral certificates.
Looking beyond the technicalities of statutory interpretation the Court is now considering, the tenor of the argument is another reminder that we are still struggling with something much more fundamental – the threat posed to our democracy by the events of January 6th and the pressing need to hold accountable those responsible for it. This application of the law is novel because January 6th was unprecedented.
That some Justices, at least in their questioning, fail to grasp this reality is concerning in itself.
Stay tuned for more on this case.
What else we’re tracking:
To track and explain important election developments and whether they present a risk of election crisis, the National Task Force on Election Crises has a new state-by-state dashboard. Keep this page bookmarked.
Fascinating bit in Psychology Today: “Why do people choose authoritarianism over democracy?”
Disinformation spread by Russia and China is everywhere, including Capitol Hill, and threatens the 2024 election. Don’t trust me on it — trust Karl Rove, writing in the Wall Street Journal. (FYI: his recommendations echo some of Protect Democracy’s.)
Freedom House’s Alexandra Karppi and Mary Hopkins summarize the human costs of democratic decay. The bottom line: “vulnerable people become more vulnerable.”
For journalists on the 2024 beat: The Elections Group — one of the go-to resources for election admin knowledge — is hosting a workshop on how to cover the election, moderated by former NPR journalist Pam Fessler on April 25. Tune in.
Authoritarianism is bad for business, period. Rachel Kleinfeld explains how and why on The UnPopulist’s Zooming In podcast.
The Washington Post’s Theodore Johnson explores race, history, democracy and place through the eyes of one city: Danville, Virginia. “History is glorious and inglorious everywhere.”
A contingent election would be a disaster, write Cyrena Kokolis and Beau Tremitiere in The Fulcrum. But there are reforms that can make one much less likely — namely, fusion voting.