The Harvard Law Review Forum has posted my new Essay, Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States (see also this more readable version). Here is the Introduction:
The United States faces a serious risk that the 2024 presidential election, and other future U.S. elections, will not be conducted fairly and that the candidates taking office will not reflect the free choices made by eligible voters under previously announced election rules. The potential mechanisms by which election losers may be declared election winners are: (1) usurpation of voter choices for President by state legislatures purporting to exercise constitutional authority, possibly with the blessing of a partisan Supreme Court and the acquiescence of Republicans in Congress; (2) fraudulent or suppressive election administration or vote counting by law- or norm-breaking election officials; and (3) violent or disruptive private action that prevents voting, interferes with the counting of votes, or interrupts the assumption of power by the actual winning candidate.
Until recently, it would have been absurd to raise the possibility of such election subversion or a stolen election in the United States. Few cases have emerged in at least the last fifty years of actual election sabotage by election officials, leading to an election loser being declared the election winner, despite other unique pathologies of American election administration.
The conduct of former President Donald Trump in repeatedly and falsely claiming that the 2020 election was stolen has markedly raised the potential for an actual stolen election in the United States. Millions of Trump’s Republican supporters now believe the false claim of a stolen election, and some Republican elected officials have pursued sham “audits” and taken other steps that undermine voter confidence in the fairness of the election process. States have passed new laws not only restricting the vote but also making it easier to sabotage election results. Threats of violence and intimidation have led to unprecedented attrition among election administrators, and some exiting officials are being replaced by those who may not have allegiance to the integrity of the election system. Those Republican election officials who stood up to President Trump in 2020 and saved the United States from a potential constitutional and political crisis have been censured, stripped of power, and challenged for office by those embracing the “Big Lie.” Together, these actions serve both to delegitimate the election of Democrats, including President Joe Biden in 2020, and to open the door to election manipulation in future elections. Elected officials, election officials, and others believing or purporting to believe the false claim that the 2020 presidential election was stolen may seek to justify subverting future election results in response to earlier purported fraud.
The solutions to these problems are both legal and political. Legal changes should include: (1) paper-ballot, chain-of-custody, and transparency requirements, including risk-limiting audits of election results; (2) rules limiting the discretion of those who certify the votes, including Congress, through reform of the Electoral Count Act; (3) rules limiting the overpoliticization of election administration, especially by state legislatures; (4) increased criminal penalties imposed on those who tamper with federal elections or commit violence or intimidation of voters, election officials, or elected officials who certify candidates; and (5) rules countering disinformation about elections, particularly disinformation about when, where, and how people vote. In addition, it will be necessary to organize for political action to reenforce rule-of-law norms in elections. This means advocating for laws that deter election subversion and against laws making stolen elections easier; politically opposing would-be election administrators who embrace false claims about stolen elections; and preparing for mass, peaceful protests in the event of attempts to subvert fair election outcomes.
Part I of this Essay describes the path to this unexpected moment of democratic peril in the United States. Part II explains the three potential mechanisms by which American elections may be subverted in the future. Part III recommends steps that can and should be taken to minimize this risk. Preserving and protecting American democracy from the risk of election subversion should be at the top of everyone’s agenda. The time to act is now, before American democracy disappears.