The Volokh Conspiracy
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Pildes on the Election's Guardrails
Rick Pildes offers cautionary notes about specualtive fear-mongering about the administration of the 2024 election.
Multiple political commentators and media outlets have spun narratives of potential election disasters, including efforts to overturn the results. Over at Lawfare, Rick Pildes explains why many of these scenarios ignore the legal guardrails that are in place that are likely to prevent such scenarios from taking place.
As Election Day draws near, anxieties are running high among Democrats about how partisan actors backing Donald Trump might seek to steal the 2024 election. Trump himself has commented that "the only way we're gonna lose" is "if they cheat," raising the specter of another attempt to upend the election results like the country saw in 2020. The danger is real, but much of the speculation about mechanisms Trump or his allies might use to overturn election results risks unnecessarily raising the anxiety level of voters. To be sure, partisan actors might well try various ploys to manipulate the outcome, particularly if the election hinges on one or two states. But there are significant legal, institutional, and political guardrails already in place to thwart these partisan efforts.
A recent essay Neal Katyal authored in the New York Times is a good illustration of these anxieties. Katyal raised several nightmare scenarios for "a potential election crisis" under which, in his view, corrupt partisan actors could seek to deprive Vice President Kamala Harris of a lawful victory, if in fact she wins the election. But in each of the scenarios Katyal raises, the guardrails that are already in place should temper these concerns.
Some of these guardrails are longstanding. Others were enacted as part of the Electoral Count Reform Act. Together, the various guardrails protect against most of the common nightmare scenarios put forward about rogue governors, electors, or state legislatures. And what about Congress? Pildes writes:
Would Congress nonetheless defy the ECRA and act illegally? To reject a state's electoral votes would require a majority in each house of the newly elected Congress. No matter which party controls the House and Senate, its margin is expected to be thin. Sen. Susan Collins was the leader oncr the Republican side in the bipartisan Senate group that drafted the ECRA. Other Republicans in that group who will still be in the Senate in January 2025 include Lisa Murkowski, Todd Young, and Shelley Moore Capito. Let's assume for the sake of analysis Republicans control the House and have 51 or 52 Senators. It would still take only one or maybe two Republicans to abide by the terms of the ECRA that they themselves drafted to defeat any plot in Congress to steal the election
None of this means the election will be free of trouble or dispute, only that these particular concerns -- that the election will be stolen or the legitimate results subverted -- fail to account for the legal and other safeguards that are in place.
The piece concludes:
There is no way to make the system entirely failsafe against all risks. I'm particularly worried that Pennsylvania and Wisconsin will have long delays in getting to a definitive result, given that their laws still – unconscionably – refuse to permit their election officials to start processing absentee ballots until election day. If the results of the election cannot be known for several days, this will almost inevitably spawn suspicion and distrust, fueled by social-media conspiracy theories, and might lead to major efforts to disrupt the vote-counting process. In advance of the 2020 election, I wrote that this dynamic of late vote counts would likely be a major focal point of efforts to delegitimize the outcome. I fear the situation is even worse this time around. Too many voters are already primed in advance this time around to believe the election is "being stolen" if the numbers change dramatically overnight and in the days after the election.
Post-voting partisan efforts to manipulate the process could undermine public confidence, be disruptive, and even lead to civil unrest. But there are many more mechanisms in place than a lot of anxious public commentary recognizes to ensure the lawful outcome of the 2024 election.
