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Donald Trump and Uncle Sam pointing their fingers.
Trump lays the groundwork to contest the election
When Donald Trump was in Atlanta for a rally last week, the former president picked what seemed like an odd target for an attack: Georgia Gov. Brian Kemp, a popular Republican who runs a state Trump almost certainly needs to carry if he hopes to win the election this fall.
“He’s a disloyal guy,” Trump said. “And he’s a very average governor. Little Brian, little Brian Kemp. Bad guy.” Kemp, you may recall, was the governor who refused Donald Trump’s request in 2020 to “find the votes” the outgoing president needed in order to defeat Joe Biden in Georgia.
In the same speech, Trump praised three obscure members of Georgia’s State Election Board, calling them “pit bulls fighting for honesty, transparency, and victory.”
Their act of heroism? Three days earlier, they voted to give the board the power to delay the certification of election results it deems suspicious. The three people — Rick Jeffares, Janelle King, and Janice Johnston — have all been affiliated with denying the results of the 2020 election.
What’s Trump up to? Democrats and independent election analysts believe he is preparing to systematically challenge the results if he fails to win the electoral college in November, using a combination of procedural disruptions, legal challenges, and, if necessary, Jan. 6-style violence.
Stacking the deck
Nearly 70 election officials in six swing states reportedly believe, incorrectly, that Trump was cheated out of victory in the last election. They intend to do what they can to make sure he wins this time, using their offices to refuse to certify results if need be.
Democrats are so worried that they’ve already taken action to head off that possibility. In 2022, they managed to amend the Electoral Count Act to make it harder for local officials to overturn results on spurious grounds.
New York University constitutional law professor Richard H. Pildes, who advocated for reforming the act, is uneasy about what may happen during this election, but on balance he thinks that attempts to reject legitimate results will fail.
“There are election officials in place in some states to be concerned about,” says Pildes, “but if you’re imagining there’s some available strategy that will undermine the result of the election, I would not say that there is some obvious, clear path that would be successful.”
‘Serious risks in the process’
Still, Pildes will be keeping an eye on absentee ballots in Pennsylvania and Wisconsin, which Republicans are likely to challenge, and which will be counted after the other votes have been tallied.
“If it looks like the outcome could be affected by the outstanding absentee ballots that don’t start getting counted until late on election night or the next day,” he says, “I think that that is a place where we could really see serious risks in the process.”
If Trump-backing election officials in Georgia, or any swing state, refuse to certify the votes that would put Harris over the top, the courts would have to step in.
“State and federal courts would get involved and force boards to do what they need to do to determine the final winner of the election in time,” says Richard L. Hasen, an expert on election law at UCLA. “But this seems to be one of the only plays (the Republicans) have.”
The law is clear. Local officials are supposed to rubber stamp the results, not launch chaotic inquiries into bogus fraud allegations, but the application of the law depends on judges following it. Democrats are uneasy about the Republican-appointed majority on the Supreme Court. A surprising recent decision on presidential immunity split along partisan lines. If that were to happen in an election case, Trump’s disruptions could give him the presidency.
But both Hasen and Pildes point out that so far the court has not bought election-denial arguments and seems unlikely to do so.
For Trump to win this way would be something of a triple bank shot that could only happen if the outcome rests on disputed ballots in one state and there is a valid legal issue at play. The last time that happened was in 2000, when the Supreme Court decided George W. Bush, not Al Gore, won Florida.
After the 2000 ruling, Gore graciously conceded and Bush was sworn in. It is impossible to imagine Trump doing the same.
Try as he might, Trump was unable to convince judges that he won in 2020, but he did manage to convince millions of Americans, many of whom are armed and angry, which makes this election more treacherous and uncertain than any in recent history.