AS THE CLOCK TICKS DOWN to Election Day, our country’s collective anxiety continues to rise. As of Tuesday, approximately 18 million voters had already cast ballots (in total, 158 million people voted in 2020), but projections remain elusive. Several states have set historic records in early voting, including deep-red Louisiana. Perhaps aware of the benefits he stands to gain by encouraging this early turnout, Donald Trump has changed his tune on mail-in voting, which he claimed was rife with fraud when it favored Democrats in 2020. Early Democratic voters are outpacing Republicans by more than 2:1 in Pennsylvania, however, while the parties are roughly equal in North Carolina. By all perceivable metrics, the race is tight. Who “wins” could come down to election maneuvering—an art the GOP aspires to master. Their panoply of interference tactics is daunting. To simplify things, here’s what we should anticipate they’re planning to do before the election, on Election Day, and after the election to game the results in their favor.
As I explained earlier this month, a tactic du jour this round is encouraging voters to file “mass voter challenges” to other voters’ eligibility, often in large numbers all at once. In most states, the deadline for bringing such challenges has passed by now, but that doesn’t mean they haven’t affected individual voters. In Georgia, over 100 voters had to show up at an election office to prove their eligibility after a single person filed a challenge to remove over 850 people from voter rolls—an eyebrow-raising example of the sort of challenge the state accepts as perfectly legal. “We had never come across each other, so it’s like somebody stands out in the street and accuses you of some crime in your neighborhood,” said David Goldrick, who was among those accused of being illegally registered. Presumably, many people won’t make the effort to get back on the rolls in time to vote.
Republicans have also filed a record number of lawsuits across numerous states seeking to purge state voter rolls in advance of the election and to change election rules and procedures in their favor. (Democrats have filed lawsuits, too, to counteract the GOP’s strongarm tactics.) In Virginia, a federal judge this week ruled in favor of pro-voting groups who sued over Gov. Glenn Younkin’s order to remove “noncitizens” from the rolls, requiring the state to release the names of the purged voters so they can demonstrate their eligibility. The Justice Department has also sued Virginia over the practice, which is regulated by the federal Voting Rights Act. In Alabama, a federal judge recently ordered the reversal of that state’s removal of over 3,000 names from voter rolls.
This is against the backdrop of skewed districts for House races. The Supreme Court’s far-right majority effectively made race-based gerrymandering impossible to challenge this past term, while key maps already favor Republicans, especially in the South and Midwest. In 2021, the House of Representatives passed the Freedom to Vote Act, which would have addressed some of the problems with unfair congressional redistricting (among many other things), but Senate Republicans killed it with a filibuster.
Meanwhile, the Trump campaign’s constant lies about election integrity and widespread “illegal immigrant” voting continue to fuel—in advance of November 5—the false narrative of another “rigged” election that the GOP will spew if Kamala Harris wins. The end game appears to be stoking MAGA anger, national chaos, and even violence.
For Election Day, the GOP is recruiting poll monitors from suburban areas and attorneys—they are hoping to enlist more than 100,000 people in the effort—to hover over the voting process in Democratic cities. Election experts fear their presence could be both intimidating and disruptive to voters and poll workers. Meanwhile, threats to local officials are continuing to surge. Based on what happened in 2020, election experts anticipate people showing up to polling places armed and wearing tactical gear, chanting and yelling at voters and election workers, doxing voters and election workers, and taking photos of people who approach polling places.
Some of the dozens of cases already filed by the GOP that challenge various voting procedures have been called “zombie lawsuits.” The idea is that if they are not dismissed in advance, these cases could lie in wait until Trump loses, if he does lose; at that point, they would rise and stagger into action to overturn the result. More than 60 such lawsuits were filed in 2020, all of which (with a minor exception to a part of a case filed in Pennsylvania) were rejected by state and federal judges (including some Trump appointees) based on weak legal arguments and elusive facts. But the merits of these lawsuits are not the point. The filing of a lawsuit, however bogus, creates a where-there’s-smoke-there’s-fire impression among the public. What non-lawyers don’t realize is that litigants can file whatever garbage they want—it takes the other side to file a motion asking a court to throw out the garbage to get it off the docket. In many of these cases, there’s no smoke at all, but the Trump campaign and the Republican party use them to howl about fake election fraud anyway.
These flawed cases span the gamut of voting issues, including challenges in the area of so-called “signature matching,” the process by which election officials, in some cases without state-level guidance or training, verify that the signature on a ballot matches that of the person taken to have cast it. Mark Gaber, director of trial litigation at the non-partisan Campaign Legal Center, has said that these claims often hurt the voter because “Courts have found that there’s a high risk of wrongly being identified as not having signed your ballot.” Four states that have signature-matching policies don’t even require voters to be notified if their ballot is being rejected for lacking a matching signature; other states with signature-matching policies give voters the opportunity to correct mismatches.
Perhaps an even larger concern post-election is that election officials and workers who adhere to the Big Lie will refuse to certify election results at the local or state level. The first step after ballots are cast is for election “canvassers”—those who account for each ballot cast in a county or municipality—to meet and certify the vote count in that county or municipality. Statutes set the deadlines. For statewide races, those counts then go state officials who do their own canvass and certification according to state law. For the presidential race, each state’s top executive must then issue a “certificate of ascertainment” before the Electoral College meets on December 17, 2024. This year, the date for issuing the certificates is December 11, 2024.
So what happens if an official at any level of the process refuses to certify?
The 2022 passage of the Electoral Count Reform Act (ECRA), which updated the Electoral Count Act, made this much more difficult to get away with. (For instance, if a state were to miss this year’s December 11 deadline, courts could step in and force certification by December 16.) But that kind of state-level intransigence would mean litigation, and the outcome of the resulting case would depend on courts agreeing that certification is mandatory and ordering that county officials certify election results by a date certain. It’s also unclear whether an undercount could wind up being certified; something like that happened in 2000 when the Supreme Court refused to allow a hand count under Florida law in Bush v. Gore; over 60,000 originally missed ballots ended up going uncounted as a result.
It’s important to note that after Election Day, the identity of voters is secret, and individual ballots cannot be unearthed as “ineligible,” no matter that Team Trump will undoubtedly try to prove some of them are. But by targeting certification, the GOP strategy seems to be to upend the entire result in swing states, throwing the outcome of the election into intractable uncertainty, and enraging MAGA voters in the process.
The ECRA raised the bar for members of Congress to stall the Electoral College count in January based on bogus objections (it now takes one-fifth of each chamber). Although unlikely, seizing the White House after losing the election is nonetheless not impossible this year. If Trump secures enough GOP enablers to assist him in triggering deception and chaos, he could muck up the system enough to throw the election to the House under the Twelfth Amendment. (The ECRA does attempt to stave off this eventuality by allowing for expedited appeals to federal court, and also directing that a failed certification in a particular state means that state’s Electoral College votes just get deleted from what counts as a majority for purposes of declaring a winner.)
Given Trump’s Machiavellian mindset, what lies ahead is impossible to predict. “No one knows exactly what Trump’s attack on the electoral system will be in 2024,” said Rep. Jamie Raskin (D-Md.), a member of the House January 6th Committee. “What will he do this time?” All we can do is wait, hold on to our hopes, and see what comes down.