NOTE: Tim Hill is a professor of political science at Doane University. His research focuses on political participation and voting behavior, linking institutions (parties, interest groups, media), and political psychology. He is also a member of Civic Nebraska’s Board of Advisers.
I recently received a text from a friend who was worried about what she called “the malicious lunacy we’re probably going to see” in the months following this year’s election. As our first presidential election since the insurrection of Jan. 6, 2021, approaches, it’s fair to be on edge for the possibility of the fire next time. When unprecedented events occur, they scramble our sense of the possible.
But what, specifically, are the threats that experts find to be genuine, and what can we all relax about? To answer that question, it’s worth revisiting the immediate aftermath of the 2020 election.
The flurry of lawsuits, accusations, and conspiracy theories that culminated in the attack on the Capitol building may have seemed at the time to be a flailing, directionless yawp of rage. Still, we know now that it was all in service of a single goal: overturning the election results in enough states to reverse the outcome of the Electoral College. Everything from the racist attacks on poll workers in Georgia to the (unsuccessful) lawsuits in battleground states across the country to the baseless objections to certification by members of Congress were in service of that end. Even the insurrection itself was aimed at delaying the certification of the electoral vote in the hope that the delay would give time for state legislators to issue alternate slates of electors, thereby throwing the count into doubt and giving the House of Representatives no choice but to decide the election themselves.
This was a perilous moment for American democracy. Only through the selfless actions of public servants, from the vice president to anonymous members of various county election boards, did our unbroken string of peaceful power transfers continue through another cycle.
In the wake of that nearest of misses, Congress passed the Electoral Count Reform Act (ECRA) in 2022, which closed many of the loopholes used in the efforts to prevent certification of the electoral vote on the floor of the House. For instance, in 2020, the law required the count to stop if one House member objected to a state’s inclusion. The chambers then had to separately debate and vote on whether to count those electoral votes. Under the ECRA, that count cannot be stopped without 20 percent of each house joining the objection. This is a much higher bar, making the kind of frivolous objections entered by some members of both houses in 2020 considerably less likely.
Perhaps for that reason, a fair amount of media attention in 2024 has been turned to the state and local levels as the likeliest locale for electoral chicanery. Journalists and pundits have recorded many doomsday scenarios over the past weeks and months about county or state election boards refusing to certify valid results, throwing a close election into chaos, or stealing it outright. But here, too, the law is firmly on the side of an orderly process.
Consider the case of Georgia, a swing state that has been in the news lately due to the actions of a newly appointed majority of its State Election Board. These three members have forced through several changes to election procedure, which, at first blush, make certification much more difficult. As Lawfare’s Anna Bower has reported, however, closer inspection suggests there is less here than meets the eye. For instance, the State Election Board pushed through a rule requiring a hand count of all ballots after the polls close, against the advice of both Georgia’s attorney general and its secretary of state. Much of the coverage of this story has suggested that this change could delay the results by weeks. But as Bower points out, this coverage seems to have confused the counting of ballots with the counting of votes.
There is little doubt that hand-counting votes of every race in Georgia would hugely delay the reporting of those results and introduce a significant amount of unnecessary error. The rule, however, only requires the hand counting of ballots — it mandates that poll workers check to ensure the number of pieces of paper on hand matches the number recorded by the voting machine. If it does not, they should figure out why and do what they can to reconcile the two. While likely redundant, such a double-check isn’t nearly the delay it would be if humans had to hand-count every individual vote.
Of course, it’s certainly possible that actors on the ground, through some combination of bad faith and delusion, could use this rule or another one to justify a refusal to certify. However, it’s still unlikely that such individual action could significantly stall the proceedings. Poll workers and even election boards simply don’t have the authority under the law to prevent certification, and courts have experience in quickly forcing recalcitrant actors to do their legally mandated duty. In situations where they still refuse, courts can mandate those duties to be performed by other actors (such as a state’s secretary of state), and it has equal force of law.
All of this brings us back to the question I posed at the beginning of this post: which concerns are founded in reality, and which ones can we let go of? Thanks to the work of lawmakers of both parties and at all levels, it’s very unlikely that any valid election results won’t be certified. As election law expert Derek Muller writes, “There isn’t one weird trick to steal a presidential election.”
While we can be confident the law will hold, it is also likely that the same forces who tried to sow disorder and confusion four years ago will do so again, regardless of the outcome. That intentional peddling of misinformation and mistrust is its own threat to democracy, giving weight to my friend’s concerns about “malicious lunacy.”
It is up to all of us to remain calm and to remind our friends and neighbors of the truth: America’s elections are the safest they’ve ever been, and only our own doubt and recrimination can undo that remarkable achievement.
