The Courts Are the Only Thing Holding Back Total Election Subversion

The false claim of a stolen election metastasized into an election-denialist movement far worse than we could have ever imagined.

Illustration of a gavel with a voting box on top
The Atlantic

​​The United States has failed its first important test for democracy since the 2020 election season: Election denialism has taken hold among a significant segment of Republican voters, and election deniers are poised to win elections next week. They will go on to oversee or certify some elections in 2024. The question that matters now is whether the next line of defense for American democracy—our system of state and federal courts—is strong enough for the task ahead.

Things were bad enough at the end of 2020 and into early 2021. Donald Trump’s relentless invocation of the false claim that the 2020 election was stolen from him through phantom fraud and technical irregularities led to frivolous lawsuits, protests and threats against election workers, and the violence of the January 6 insurrection. When Trump left the White House on January 20, courageous and focused Republican leadership could have quashed Trumpian antidemocratic forces, especially if Democratic leadership had had an earlier singular focus on preventing election subversion.

Instead, the false claim of a stolen election metastasized into an election-denialist movement far worse than even those of us who worried deeply about the future of American democracy in 2020 ever imagined. Election denialism has emerged as a key plank of modern Trumpism, defining part of what it means to be a Republican. It is not just that 65 percent of Republican Party voters say they do not believe President Joe Biden won the election, or that nearly 300 Republican candidates for office have denied or questioned that he did so. It is that the wholesale attack on the integrity of the election system has had a number of downstream effects that make our elections far more vulnerable.

One of those key effects has been to spread the threat posed by those whose job it is to administer elections. Conspiracism has trickled down to local election officials in areas rife with Trump supporters. Republican commissioners in Otero County, New Mexico, initially refused to certify the results of the June 2022 primaries there, citing unspecified concerns with Dominion voting machines—machines that had been the targets of conspiracy theories by Trump supporters in 2020. Tina Peters, a county clerk in Mesa County, Colorado, allegedly arranged to share voting-machine software with conspiracy theorists. And in Nye County, Nevada, election officials threatened to do a hand count of all the ballots coming in for the midterm election, even though such a count would be not only less accurate than a machine count followed by a fair audit of the results, but also against state law. Rural areas in the swing state of Nevada have become a hotbed for the Big Lie, and pressure has built on rural county commissioners to do the wrong thing with election administration.

This insider threat is poised to get worse after the 2022 election, when one or more election-denier candidates for secretary of state—the chief election officer in many states—are likely to take office and administer the presidential elections in 2024. And if the gubernatorial candidates Kari Lake of Arizona and Doug Mastriano of Pennsylvania win their races, they will be the ones signing the certificates saying who has won their state’s crucial Electoral College votes in 2024. Both have denied that Biden won in 2020.

Given the highly decentralized, partisan nature of American election administration and the key role that state and local officials play in counting votes and certifying their accuracy, these insider threats to elections are profoundly troubling. In the past, the country has relied on state and local election officials, regardless of party, to count votes fairly and to accurately report results—but that can no longer be taken for granted.

If the country cannot trust the vote counters, it will have to turn to the courts, both state and federal. For the most part, courts performed admirably the last time around. When Trump and his allies challenged the result of the 2020 presidential election, judges required actual evidence of fraud or irregularities on a major scale, which Trump’s team could not produce (because it did not exist). Challengers lost more than 60 of their lawsuits, winning one on only a minor technical point. Most (but not all) judges did the right thing, regardless of party.

The threat of inside-the-house corruption has grown since then, and courts have stepped in. The New Mexico Supreme Court required Otero County commissioners to certify the vote or face contempt, and they did so (with a dissent from one of the commissioners, who was in Washington, D.C., during the certification meeting, awaiting sentencing for his role in the January 6 insurrection). Peters, the Mesa County clerk, has been indicted on felony charges. And a court just ordered Nye County officials to follow state law on vote counting.

That’s all for the good, but it is no sure thing that judicial backbone will hold up in the upcoming election seasons. Some election deniers are running for attorney general this year, and if they win, they are unlikely to bring charges or investigate insider threats to elections. Some states do not have clear rules to ensure that votes are counted fairly and accurately. That means private citizens and good-government and voting-rights groups may need to go to court to sue to protect fair voting, raising claims under not only statutes, but also the U.S. Constitution and state constitutions.

Courts will have to be flexible with doctrines such as standing when private parties sue over elections, and expansive in their reading of statutes and constitutional provisions to ensure that there are adequate judicial tools to protect the vote. That includes making sure cases can be brought quickly, and that investigations can happen on the timetable necessary to resolve presidential-election disputes. The pressure may come to bear on state judges and state-supreme-court justices, many of whom are elected officials and know that the Republican base is full of election deniers.

If all goes well, Congress could pass a bill in the lame-duck session after the election that will rewrite the arcane 1887 Electoral Count Act and make stealing presidential elections harder. One of the bill’s provisions establishes the right for a presidential candidate to go directly to a three-judge federal court, with appeal to the Supreme Court, if a governor refuses to certify a slate of presidential electors who reflect the will of the state’s voters. If the legislation passes, I expect constitutional challenges to it. Courts need to uphold this provision and others that protect our democracy against stolen elections.

The forces unleashed in 2020 may have begun as little more than an attempt to assuage the ego of a man who lost both the popular vote and the Electoral College vote. But now they are much bigger than him. The threat is real and urgent. Our political leaders have failed us, so it’s up to the judiciary to protect us. Let’s hope they continue to be up to the task.