The specter of Jan. 6 haunts the 2024 presidential election.
Most Democrats believe former President Donald Trump should be in jail for his efforts to overturn the results of the 2020 contest – or, at the very least, that he should be barred from running for the highest office again. Most Republicans believe Trump as he continues to push the “stolen election” lie, spreads baseless claims of widespread voter fraud (especially by noncitizens) in November, and sows doubt about the election’s legitimacy.
Both sides argue that the stakes of the upcoming election are at their highest, with the fate of American democracy hanging in the balance. Barring an unlikely landslide, a large percentage of Americans will see the result as illegitimate, with challenges and recounts likely regardless of who wins.
Should Trump win, Vice President Kamala Harris will concede. That’s not to say that all Democrats would go gentle into that good night, especially if she wins the popular vote and the Electoral College is very close. Legal challenges in contested swing states could go all the way to the conservative Supreme Court, where they would probably flounder. Some individual Democratic lawmakers might then opt to vote for a resolution to disqualify Trump from the presidency by declaring him an insurrectionist and thereby ineligible to serve under Section 3 of the 14th Amendment. A few of them would also try to block certification of Trump’s Electoral College victory when Congress meets on Jan. 6, 2025, like they did in 2016 and 2004. But both efforts would be performative and futile, as congressional Democrats have neither the stomach nor the numbers to successfully overturn a legitimate election.
If Harris wins, Trump is all but certain to allege the election was stolen from him again – no matter how wide the margin. The former president not only continues to deny his defeat in 2020, but he has also repeatedly refused to commit to accepting the upcoming election results. Trump and his allies have spent years spreading conspiracy theories to prime the Republican electorate into believing that the only way he could plausibly lose is through fraud. They have laid the groundwork to dispute a potential 2024 loss and devoted substantial resources to prepare for the battles that could ensue.
Whether they could succeed where they failed last time is a different question … and the answer is no – at least not legally. Despite the considerable resources Republicans dedicated to the preemptive “stop the steal” movement, Trump has fewer options for challenging the results today than he did in 2020.There are two key reasons for this.
The first is that as a private citizen, Trump no longer has access to the levers of power that could allow him to contest the election successfully. He cannot, for example, order the US military to seize voting machines pending an investigation of election fraud, an idea he floated when he was still president in 2020. Nor can he direct the Justice Department to investigate and prosecute allegations. Attempts to intimidate election workers into “finding” extra votes for him or to pressure swing state governors into submitting alternative slates of electors are less powerful when they come from a bully with no pulpit.
The second guardrail the United States has today is the Electoral Count Reform Act passed by Congress in 2022. By clarifying the process by which states send their slates of official electors for Congress to certify, the new law effectively forestalls the “fake elector” scheme that Trump’s state-level allies attempted to implement in 2020. Moreover, the act raised the threshold for Congress to lodge an objection to a state’s electoral votes to one-fifth of the House and Senate, up from just a single member of each chamber. If that bar is met, majorities of both chambers then have to vote to disqualify a state’s electoral votes. This greatly reduces the likelihood that any objections occur at all.
The electoral system may be stronger than it was in 2020, but so is Americans’ mistrust of it. While court challenges and recounts are likely to be resolved before the Electoral College convenes on Dec. 17 to formally decide the winner, the delays and uncertainty these would create about the results would dent public confidence in the election and put pressure on congressional Republicans to vote to block certification.
Although most Republican lawmakers continue to roll their eyes at Trump behind closed doors – and even more will curse his name if he loses a winnable election – 147 of them did vote to object to certified results from Pennsylvania in 2020. Next Jan. 6, there will be even more Republicans in the House and Senate who are beholden to Trump or are unwilling to compromise their political future by condemning the former president’s antics. The changes made to the Electoral Count Act in 2022 mean a challenge is highly unlikely to move forward and prevent the winner from being certified, but even an unsuccessful attempt would undermine Americans’ already-low confidence in US democracy.
The bigger threat is political violence after the election. As more citizens believe their system is being subverted by their political enemies – with outcomes that can no longer be addressed by a free and fair vote – radicalization and support for civil disobedience will grow. This runs from the symbolic (refusal to participate in inauguration, attend political events, etc.) to the political (creation of “autonomous zones,” secessionist movements, etc.) to physical violence (rioting, militias, and targeted assassinations).
With Democrats in power, most key Proud Boys and Oath Keepers in federal prison, and Washington, DC, in full lockdown, a repeat of the Jan. 6 attack on the Capitol is unlikely if Harris wins. But violence could still come from far-right extremists and individual agitators seeking to disrupt vote counts and state legislative sessions to certify the electoral slate in swing states.
If Trump wins, the violence would come later as left-wing protesters rally at his inauguration and against his immigration policies. Coupled with his likely pardon of the Jan. 6 rioters, a National Guard deployment or an invocation of the Insurrection Act could spur a vicious cycle of escalating clashes.
None of this means the United States is headed for civil war. The risk of any political violence posing a serious threat to US stability remains very low. But we are likely to see a period of profound unrest the likes of which the country hasn’t experienced in decades.
The most divided and dysfunctional advanced industrial democracy will become more so.