Subverting 2024, part three: deny

Declaring the true result untrue, unknown, or unknowable

The moment Donald Trump plunged America into a steaming vat of election denialism happened in the wee hours of Election Night 2020, when the then-president stood in the East Room of the White House and declared:

“This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election — frankly, we did win this election… We want all voting to stop. We don’t want them to find any ballots at 4 o’clock in the morning and add them to the list.”

Unfortunately, we’re still in it. 

Trump has centered his 2024 presidential campaign around election denialism and selected a vice presidential pick who embraces the cause. We should anticipate Trump will again dishonestly claim victory before the votes are counted, and his backers will attempt to deny the rightful winner from taking office if Trump loses.

They’ve already unfurled election lies to deceive voters to lay the foundation to disrupt and deny the results in the event of a loss. Their strategy — deceive, disrupt, deny — remains dangerous but can be more easily recognized and, therefore, stopped.

The two previous editions of the Subverting 2024 series, “Deceive” and “Disrupt,” discussed the dishonest narratives and unfounded challenges that election deniers are positioned to misconstrue as “evidence” the election was fraudulent. This final edition of the series, “Deny,” explains how election deniers may build upon those efforts to deny certification of the election results and what safeguards are available to counter them. 

By analyzing the strategies election deniers employed in 2020 — and the actions many of the same bad-faith actors are taking now — there are five options they are likely to pursue to deny the results:

Making false claims of victory

Before the 2020 election, experts cautioned about the likelihood of a “red mirage” on Election Night, where Trump would likely appear ahead before many mail-in votes were counted and a “blue shift” would occur. Still, Trump exploited the time-lapse between when he seemed ahead in the count and when the final result was called for his opponent to falsely claim that he won and any votes that tipped the outcome otherwise were illegitimate. 

The blue shift is mainly due to self-imposed delays by Republicans.

Since 2020, election experts have called on states to take steps to speed up absentee ballot processing — but in two key states, Pennsylvania and Wisconsin, Republican legislators refused to support expanded pre-processing. And Republican-controlled legislatures in Arizona, Georgia, and North Carolina have added other new requirements that will likely slow down results. 

For these reasons, experts again predict there may be no clear winner on Election Night in 2020. While there is no way to prevent Trump from telling lies, making false claims of victory, calling to disregard ballots, and repeating baseless allegations of fraud, all should be properly addressed as re-run strategies to deny the final results.

Refusal to certify on the county level

In 2020, Trump’s effort to overturn the election results included a pressure campaign directed at local officials in Michigan who were charged with certifying election results at the county level. Since then, county officials across the country (including in key swing states like Arizona, Pennsylvania, Georgia, and Nevada) have threatened or refused to certify election results, relying on conspiracy theories about election fraud. 

However, certification is a legal duty; a court can order local officials to complete it. 

This is why these efforts have largely failed. 

Think about it like this: Those required to certify elections are like scorekeepers. Their job is to record the results, and then, if any issues need to be addressed, the states have established laws and procedures to verify the count, launch recounts, conduct audits, and resolve them promptly. Local certifiers do not have the power to challenge results, launch investigations, or otherwise stall the process. 

For these reasons, officials who refuse to certify election results may be subject to criminal charges. For example, two Cochise County, Arizona supervisors were prosecuted on conspiracy charges for refusing to certify the 2022 election results; one pled guilty to a charge earlier this week, and the other is expected to go to trial next year. 

While county refusals to certify have all ultimately failed, refusals are disruptions that can delay the election process and, by doing so, further fuel distrust in the process and outcome. 

Interfering with the Electoral College process

The Electoral College has a strict timeline, and any delay in its calendar due to county certification issues, court interventions, or other unforeseen circumstances could have profound ripple effects. Missing these deadlines would create uncertainty, risk the disenfranchisement of voters, and potentially lead to civil unrest.

To help resolve ambiguity in the Electoral College process and mitigate election subversion efforts, Congress passed into law the Electoral Count Reform Act in 2022. Three new components of the ECRA are now in place that can help avoid a crisis at this stage:

1. The provision that only a governor (unless otherwise specified) can file the state’s certificates of ascertainment indicating the winning slate of electors.

2. An expedited judicial review of disputes regarding the certificate to allow for a rapid judicial process between December 11 and December 17.

3. Language clarifying that electors can only be selected on Election Day, with a limited potential exception to extend voting in the event of a catastrophic event, such as a natural disaster or terrorist attack.

Existing state laws also provide officials with tools to adhere to the Electoral College’s calendar, which is available below. Specifically, state officials can allocate additional resources to help counties complete their canvass (the process that accounts for every ballot and verifies that every eligible vote appears in the final tally) or ask a court to intervene and compel certification. In some cases, a state executive may have the authority to certify on behalf of a county or to exclude that county’s votes from the state’s final tally.

Pressuring Congress to object

In the run-up to January 6, 2021, the day Congress convened to count Electoral College votes, Trump and his supporters engaged in a behind-the-scenes pressure campaign to convince Vice President Mike Pence to stop, delay, or rig the certification vote. However, Pence rightly insisted he had no authority to do so. But many others acquiesced to these requests. When Congress met, several Republican lawmakers forced a vote on objections, based on conspiracy theories, to Arizona’s and Pennsylvania’s slates of electoral votes. The violent insurrection interrupted a debate about the objections, but later that night, when Congress reconvened, 147 members voted to reject one or both slates.

While members may still object, the ECRA increased the threshold. Before the passage of the ECRA, the law only required one senator and one representative to lodge an objection to a slate of electoral votes and force a vote on the issue. Now, it takes at least one-fifth of each chamber — 20 Senators and 87 members of the House — to lodge an objection, and the ECRA limits the permissible reasons members can invoke for objecting to a state’s slate. As was the case before the ECRA passed, Congress can only go on to reject those electoral votes if a majority of both chambers then vote to sustain that objection.

The ECRA also clarified that the vice president’s role at the joint session of Congress is ministerial — to facilitate the counting of votes, not to adjudicate which state’s votes should or should not be counted.

Keeping the lie alive with frivolous challenges and unreliable “audits”

In the 2020 election interregnum, after the election was called and the results were certified by Congress, former president Trump and his allies filed more than 60 cases challenging the results of the 2020 election. Although those were unsuccessful, conspiracy theorists continued to echo and embellish false legal claims and demand investigations. 

In the spring of 2021, the Republican caucus of the Arizona state senate hired a small Florida-based firm with ties to the election denier movement and no election auditing experience — called the Cyber Ninjas — to conduct an unreliable audit that lasted months, cost nearly $9 million, and uncovered no evidence of fraud. Copycat “audits” popped up across the country. In 2022, other candidates who lost their elections followed Trump’s example by refusing to accept defeat. 2022 Arizona gubernatorial candidate Kari Lake and attorney general candidate Abe Hamadeh have continued to pursue challenges for nearly two years after their losses, while campaigning as candidates for the U.S. Senate and House of Representatives, respectively, in 2024. None of these cases or investigations has produced evidence that the election results were wrongly decided.

These actions were beyond the norm. Post-election court challenges and audits are an established and necessary part of the election process, so long as they are grounded in fact. State officials oversee and conduct these processes regularly and have a proven model of fairly managing these operations. The National Association of Secretaries of State maintains a list of best practices. 

The Arizona Senate and the (now defunct) Cyber Ninjas settled a lawsuit that accused the firm of withholding official documents, and the Senate president who led those efforts faced public backlash and retired.

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Although there is no way of definitively knowing at this time what combination of tactics election deniers will deploy in 2024, becoming familiar with their likely menu of options and how those strategies can be mitigated and stopped is necessary to protect the election and put election denialism behind us.

All three editions of the Subverting 2024 series are available here. Subverting 2024 is based on this web-friendly report from Protect Democracy staff Emily Rodriguez, Jessica Marsden, and me.

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