Mike Stewart/AP Photo
Voters leave a polling place during primary voting on Tuesday, May 21, 2024, in Kennesaw, Georgia.
There are two broad areas where the Trumpian right will attempt once again to undermine democracy. The first is voter suppression, where there are echoes of familiar tactics from 2020, including limiting polling places, making vote-by-mail more arduous, imposing photo ID requirements with double standards (gun licenses count, student IDs don’t), requiring excessive purges of voter rolls, making it a crime to collect someone else’s absentee ballot or even to offer a drink of water to a prospective voter waiting in a long line, and giving poll watchers exaggerated rights to challenge or intimidate voters.
The second strategy is devising measures to delay vote counts, allowing challenges after votes are cast, and refusing the certification of results. This was the desperate endgame Trump used that culminated in the events of January 6, 2021, and it can occur at both the state and county level as well.
According to the latest report of the Brennan Center, 28 states have added new voter suppression measures since 2020. That’s worrisome. But some are trivial and nearly all are in states that are not key to the presidential outcome.
Making it harder to vote and intimidating voters is only one way of subverting democracy, however. The other—and this is the sleeper issue—is messing with the vote count and refusing to certify the result.
In key swing states, the government is mostly in the hands of officials who will honor the voters’ wishes and provide a rapid count and certification of the winner. But Republican-controlled counties, where county officials are in charge of election administration, can still do damage.
GROUND ZERO OF THIS STORY is Georgia. There, the State Election Board, controlled by Trump allies, issued new rules clearly intended to help election deniers fiddle with results. They include a rule that allows county election boards to make “reasonable inquiries” before certifying an election if they have questions about the outcome or the process. A second rule gives board members the power to “examine all election-related documentation before certifying the results.” The three conservative members of the board held a secret meeting to discuss strategy, in violation of state transparency requirements. That prompted ethics complaints.
Brad Raffensperger, Georgia’s Republican secretary of state, who in 2020 refused Trump’s pressure to find him 11,780 votes, has called the Election Board a mess. And Republican Gov. Brian Kemp, who had a superficial kiss-and-make-up exchange with Trump after Trump ran a losing MAGA primary candidate against him and then insulted him, has now asked the state attorney general for an advisory opinion on whether he can override board rules or fire members. So even Georgia is far from a lost cause for honest voting.
The integrity of the electoral process matters most in the seven swing states where the election will be decided: Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania, and Wisconsin. The good news here is that five of the seven states (Pennsylvania, Michigan, Wisconsin, Arizona, and North Carolina) have Democratic governors committed to fair elections. Nevada has a Republican governor but a Democratic secretary of state and a Democratic attorney general (one Latino, the other African American), both passionate defenders of voting rights. And even Georgia, where all the key state officials are Republicans, is not in Trump’s pocket.
Republican-controlled counties, where county officials are in charge of election administration, can still do damage.
The Republican-controlled legislature in Wisconsin passed several suppression measures, but these were vetoed by the Democratic governor, Tony Evers. In addition, with the flip of the Wisconsin Supreme Court from 4-3 Republican to 4-3 Democrat, election drop boxes, which had been banned by the previous Supreme Court, are now legal again. This is a local option, and at least two heavily Republican areas of the state are not allowing them, but most localities are.
But in Nebraska, which allocates electoral votes by congressional district, Democrats hope for a win in the competitive Second District, which Biden won in 2020. Republicans have been trying to change the system to statewide allocation. And the Republican secretary of state and attorney general recently shut down implementation of a law allowing people with prior felonies to immediately register to vote, clouding the voting rights of thousands of Nebraskans. In 2022, according to The Sentencing Project, a total of 2.2 million Americans in 48 states with prior felony convictions were denied the right to vote.
Moreover, while democracy looks relatively secure in six of the seven presidential swing states, the presidency is not all that matters. In the 28 states identified by the Brennan Center as having added new forms of voter suppression since 2020, there are down-ballot battles for control of everything from school boards to legislatures to statewide posts like governor and attorney general as well as seats in Congress.
There will be close Senate races in Ohio, Montana, Nevada, Maryland, and Michigan, which will determine whether Democrats keep control of the Senate, allowing a President Harris the trifecta she needs to effectively govern. (Texas, where Colin Allred is challenging Ted Cruz, is a possible pickup if Democratic-leaning voters are allowed to cast ballots. But Texas is among the worst cases of crude voter suppression.)
If a democracy-protecting attorney general or secretary of state ordered an offending county to stop fooling around and respect state-mandated procedures, the dispute would end up in state or federal court. If the election is very close, and enough Republican-controlled counties play enough games in states like Michigan, Wisconsin, Nevada, or Arizona, it’s still possible that certification of the winner could be delayed.
David Becker, executive director of the Center for Election Innovation and Research, warns, “In a few states, like Texas, there appear to be efforts, like aggressive investigations very close to an election, that may be intended to make people scared of voting, so they’ll self-suppress.” Texas AG Ken Paxton has created an Election Integrity Unit, hoping to intimidate prospective voters who might stay away from the polls fearing prosecutions for trumped-up violations of some technicality. The unit has just issued multiple search warrants ostensibly to investigate “fraud and vote harvesting” in the 2022 election—after a delay of nearly two years.
DESPITE THESE SUPPRESSION EFFORTS, there are several offsetting trends that have strengthened democracy. Becker, who was a senior trial attorney in the Justice Department’s Civil Rights Division for seven years and then directed Pew’s elections program, points out that nearly everywhere both registration and voting have never been easier. In 2000, he says, only about 40 percent of Americans lived in states that permitted no-excuses early voting. Today, 97 percent do.
Republican efforts to emulate Trump’s push to block the final vote count in the Electoral College and toss the election into the House of Representatives will also be blocked by the Electoral Count Reform Act of 2022, the one piece of bipartisan reform legislation to emerge from the January 6th attempted coup. The act makes clear that a state governor or another approved executive such as the secretary of state is the sole certifier of which candidate won a state’s electoral votes, and sets a hard deadline for that certification. It thus heads off 2020-style efforts to create competing slates of electors. It also clarifies that the vice president (in the case of January 6, 2025, Kamala Harris) cannot reject electors, and provides a higher bar for objections to the electoral count.
Rick Hasen, a UCLA law professor who heads the Safeguarding Democracy Project and writes an election law blog, notes that in 2020 the courts rejected one frivolous Republican lawsuit after another. So far in 2024, Republican bids to use litigation to disqualify likely Democratic voters have not found sympathetic judges.
On balance, electoral democracy is far better defended than in 2020.
Justin Levitt, a leading constitutional scholar of voting rights, agrees. In virtually all of the cases of attempted delay and frivolous challenges that have landed in court, Levitt says, “courts, whether state or federal or Republican or Democrat, have acted like courts and have enforced the election law.”
For instance, the North Carolina legislature has passed legislation taking away from the governor the power to appoint key state election officials. So far, that move has been blocked by state courts.
Levitt, who served as President Biden’s senior policy adviser for voting rights and now teaches law at Loyola Marymount University, adds that 2020 was also more of a problem because COVID and the voting remedies for lockdowns added to delay and uncertainty. That will not be a factor in 2024.
And Levitt makes another often overlooked point. The conventional wisdom in political science and campaign circles has been that low-propensity voters tend to vote for Democrats when they bother to vote. But Trump, both in 2016 and 2020, also rallied a lot of low-turnout voters. In many states, says Levitt, Republicans now support reducing barriers to voting. “The GOP now likes vote-by-mail,” he says.
YET NOT QUITE ALL THE NEWS is good. Racially targeted voter suppression remains a threat. Congress has not passed the John Lewis Voting Rights Advancement Act or the Freedom to Vote Act, which among other things would restore the protections of the original Voting Rights Act of 1965 that were shamefully gutted by the Roberts Court in 2013 in Shelby County v. Holder. So there’s still plenty of room for racially targeted anti-democratic mischief.
As noted, the serious soft spot in the gains since 2020 is the potential role of deep-red counties. Since counties typically control voting procedures, county-level officials could attempt a variety of tricks, of the sort proposed at the state level by the Georgia State Election Board, to delay certification of results.
Even more ominous is the threat of violence directed at election workers, aimed at delaying the count. Trump and his allies have already said that there is no way that he can lose a fair election. If on election night he appears to be losing, he will put out the word that the election was rigged. That in turn will activate armies of his most extreme supporters, who have already been primed to conduct vigilante actions.
“While I’m not so concerned that the loser will be installed in office,” says Becker, “I am very concerned that lies about the election by the loser could incite violence, particularly against election officials, all over the country, particularly in deeply red counties.”
On balance, electoral democracy is far better defended than in 2020. “Major credit belongs to the legal teams and grassroots organizations that have fought voter suppression for years,” says Miles Rapoport, who leads the 100 Percent Democracy project (and is a Prospect board member). “But Trump and his enablers are constantly inventing new tactics, so the fight to protect the integrity of the November election will by no means be easy.”
What else can citizens do? Becker points out that in nearly every state, in-person early votes are scanned and tallied before election night, and then become part of the official total right after the polls close. The more of these votes there are, the less overworked local election officials are, and the less vulnerable they are to vigilante harassment.
The best remedy is for voting rights activists and litigators to be vigilant, for citizens to vote early, and for the Democrats to win by a landslide well beyond the margin of theft.
