In Donald Trump’s unsuccessful effort to reverse his 2020 election defeat, he exploited the vulnerabilities of the Electoral College process. For the election of 2024, he found new ones.
An Anti-Democratic Process
A presidential candidate’s political party names a slate of “electors” to represent that candidate in the Electoral College. When voters cast their ballots, they’re actually voting for a candidate’s electors. Only the slate of a state’s popular vote winner counts toward the 270-electoral votes required to win the presidency.
Although the courts withstood Trump’s specious attacks on the 2020 election, the past is not prologue.
The process requires several steps:
- To determine the popular vote winner, each county board assembles the results from its precincts and certifies the totals.
- The county boards report their results to the state’s election board (and/or the secretary of state). The statewide totals go to the governor.
- The governor signs a final “Certificate of Ascertainment” listing the names on the electoral slates for each candidate, the number of votes each received, and which individuals have been appointed as the state's electors.
- The Certificate goes to the National Archives where, along with all other states’ certifications, it waits to be counted at Congress’ special session the following January.
“For Want of a Nail, the Shoe Was Lost…”
Every step in the Electoral College process is fraught with danger to democracy. And Trump knows it.
- In an effort to reverse his swing state losses in 2020, he twisted the arms of election officials in Arizona, Michigan, and Pennsylvania, urging them not to certify the results. They rebuffed him.
- In Georgia, Joe Biden won the popular vote, but Trump pressured Secretary of State Brad Raffensperger—a Trump supporter—to “find” enough votes to make Trump the winner. Raffensperger resisted, and Trump now faces 32 felony criminal charges in the state.
- Trump pressed Georgia Governor Brian Kemp and Arizona Governor Doug Ducey not to certify their respective states’ results. They refused.
- Meanwhile, Trump’s allies created slates of his “alternate electors” in key swing states. Those Trump supporters swore under oath that they were their states’ proper representatives in the Electoral College. But Trump had lost the popular vote in those states, and more than 60 court cases confirmed his defeat. Many of his “alternate electors” are now facing criminal charges for their false statements.
- At a special session of Congress on January 6, Vice President Mike Pence became Trump’s last hope to retain power. If no candidate received a majority of electoral votes, the election would move to the U.S. House of Representatives where each state’s congressional delegation would get a single vote. Republicans would have the advantage, and Trump would win the presidency after losing the election.
- Because Pence would preside over Congress’ special session, Trump urged him not to count Biden’s electoral votes from key swing states. That gambit failed too.
With local election officials, governors, and Trump’s vice president resisting his unlawful attempts to subvert the election, Trump played his final card: Inciting the violent insurrection to block the transition of power.
Unsettling Precedent
Having learned from their mistakes in 2020, Trump and his MAGA allies have now corrupted the system from within. More than 100 “election deniers” who have refused to accept Trump’s 2020 defeat now serve as local election officials in the eight swing states that will decide the 2024 contest: Arizona, Georgia, Michigan, Nevada, New Mexico, North Carolina, Pennsylvania, and Wisconsin. Some have already demonstrated their willingness to wreak post-election havoc.
- In 2022, the Republican-led commission of Otero County, New Mexico, refused to certify primary election results. One commission member was co-founder of “Cowboys for Trump.” The Democratic secretary of state sued to force board certification of the vote totals.
- In 2024, two Republican members of a Michigan county board refused to certify the results of an election that led to the recall of three commission members.
- In Arizona, GOP lawmakers sued to reverse the state’s top Democratic officials’ requirement that local boards automatically validate their election results.
- In Georgia, Trump’s allies have suppressed the vote—and found new ways not to count the ones they don’t like. At his August 3 rally in Atlanta, Trump announced the state’s three GOP election board members by name, calling them his “pit bulls” fighting for victory. Three days later, those members formed a 3-2 majority adopting a new rule empowering local boards to pursue a “reasonable inquiry” (undefined) into election results before certifying an election. Ten days later, the board asserted the authority to “examine all election related documentation created during the conduct of elections prior to certification of results.”
- And Trump’s running mate, J.D. Vance, said that if he had been vice president on January 6, 2021, he would have insisted that “Pennsylvania, Georgia, and many others” have “multiple slates of electors.” He would not have certified Biden’s 2020 victory.
Don’t Worry, Be Happy!
A prominent election law scholar assures us that the weaknesses in the Electoral College process are not a problem. Notre Dame Law Professor Derek Muller argues that local election officials perform only “ministerial” acts—“little more than making sure all precincts have reported and the arithmetic is correct.”
“[T]here are ample safeguards to ensure ballots are tabulated accurately and election results are certified in a timely manner,” Prof. Muller urges.
Muller is talking about judges. He believes that they remain the critical guardrails protecting voters from MAGA loyalists in key election positions because “[a] court can quickly and easily ensure election results are certified in a timely fashion.”
But “can” doesn’t mean “will.” And some “won’t.”
Although the courts withstood Trump’s specious attacks on the 2020 election, the past is not prologue. For more than three years, Trump and his allies have pushed his Big Lie, poisoned the body politic with false claims about non-existent “voter fraud,” and infiltrated the election system with MAGA loyalists determined to assure Trump’s 2024 victory.
And for more than three years, Americans have witnessed the courts’ epic failure to hold Trump accountable for his treasonous misconduct.
A Better Plan
Relying solely on the courts is a prescription for interregnum confusion, chaos, and violence. Trump is desperate and afraid. If he loses the election, he could spend the rest of his life in prison.
Despite the dismal judicial record of the past three years, perhaps the legal system will begin to deal with Trump and his MAGA allies effectively. Meanwhile, here’s another idea:
Ignore Trump’s outrageous rhetorical distractions and shine a bright light on his dark mission – winning at all costs. To prevail, he’s willing to dismantle democracy.
