Earlier today I discussed David Leonhardt’s summary of the New York Times Magazine piece on the origins and evolution of the “Stop the Steal” movement. The piece itself, which is extremely detailed (although the broad outlines will be familiar to those who have followed the metastasis of Trump’s “stolen” or “rigged” election rhetoric from 2016 to 2020 and beyond), covers the connection between the Tea Party and Trump’s MAGA followers and, focusing on Doug Mastriano in Pennsylvania, explores how the problem of election denialism potentially will outlast Trump.

The piece emphasizes the anti-immigration connection between the Tea Party, Trump, and current status of the “Stop the Steal” movement in the hands of politicians like Mastriano. Here’s one passage of the piece, to give a flavor of that theme:

“Trump had jolted American politics, probably irrevocably, by urging his supporters to see themselves as an American people distinct from the American population — a people whose particular loyalties, identities and values designated them as the nation’s true inheritors, regardless of what the ballots might have said. If this vision was enabled by his ego, which took him to places no other American president had dared to go, it was also constrained by it, limited by Trump’s inability to imagine much of anything outside himself. This was the paradox of the final, desperate act of his presidency: The hole he punched in American democracy, out of sheer self-interest, had allowed his followers to glimpse a vision of the country restored to its divinely ordained promise that lay beyond that democracy — but also beyond him.“

Analytically, the point seems to be that election denialists believe that naturalized Americans shouldn’t be permitted to vote (because, from a misguided nativist perspective, they view naturalized citizens as not authentic Americans), and therefore they will claim that any election that their nativist movement doesn’t win must be fraudulent because of the possibility that it includes ballots cast by inauthentic citizens. Obviously, this kind of claim is incoherent as a matter of election law, whatever its cultural or sociological prevalence might be.

Anyone familiar with the history of voting laws in the United States, including from Alex Keyssar’s The Right to Vote, knows how much the struggle over the franchise has been wrapped up in battles over immigration. In the nineteenth century, for example, fights over the introduction over new voter registration procedures were often tied to efforts to limit the electoral power of newly naturalized citizens. From my own work for Ballot Battles, I’ve seen evidence that contestation over the outcome of elections (for example, between Democrats and Whigs in the 1830s) was connected with anti-immigration attitudes that affected partisan competition at the time. But from my research, I can’t recall historical examples of the sheer “electoral denialism” of what recounts and audits repeatedly show, which characterizes the exceptionally disturbing crisis of democracy at the current moment.

A naturalized citizen’s ballot necessarily counts on equal terms as a native-born citizen’s. While there might be reasonable measures that an electoral system can take to make sure that any ballot cast comes from an eligible citizen (whether naturalized or otherwise), once the validity of the ballot according to applicable laws has been ascertained, it must be counted equally. Electoral victories must be declared based on an honest, objective, and accurate count of all these valid ballots. It cannot be otherwise. To the extent that the “Stop the Steal” movement described in the New York Times Magazine piece is inconsistent with these basic premises of election law, it’s incompatible with a functioning republic. (This is true even though the movement professes to be an effort to safeguard the republic.)

In this regard, a few more passages from the Times Magazine piece are worth highlighting. First is the description of what Couy Griffin, the county commissioner from Otero County, N.M., thought he was accomplishing by refusing to certify the election (in an episode that received widespread attention in election law circles a few weeks ago):

“… in a podcast interview in May with Joe Oltmann, a right-wing activist in Colorado, Griffin placed his outwardly quixotic actions in the context of a sort of domino theory of how the 2020 election might still be overturned. “What I’m hoping that I can do through my position,” he said, “is get a blueprint started that could carry over to other conservative counties. And if we can show enough fraud in the conservative counties, then we will further leverage the bigger, more liberal counties to audit their elections, and we can produce the evidence that we need in order to decertify the elections.”

When I ran this theory by Toulouse Oliver, the secretary of state, she sighed. “We already do postelection audits after every election,” she said. “They’re mandatory. And we have done that since 2008.” Griffin’s own audit, she pointed out, had not revealed any fraud….“

Remember Griffin was the one who said: “It’s not based on any facts,” explaining his refusal to certify. “It’s only based on my gut feeling and my own intuition, and that’s all I need.” What if anything is the larger significance of this one event? Consider this from the Times Magazine piece:

“The Otero County episode had unsettled Toulouse Oliver’s understanding of the terrain on which she was standing as secretary of state. It had happened at such an obscure node in the election system: The county commission’s certification of the election results had to this point been little more than a formality, one of many thousands of similar acts performed across the country in any given election year without ceremony.

But the country was full of people who believed what Griffin did. Many of them held similar posts or were now running for them. The theories they put forth would not long ago have been the province of genuine fringe actors, not elected Republicans. In their simple willingness to throw the basic machinery of elections into chaos, they possessed an ability to make their vision real. Who knew what a hundred, or even a dozen, Couy Griffins might be able to accomplish?

Based on the overall tenor of the Times Magazine piece, I’m more optimistic than it appears to be that election law will prevail against the forces of election denialism exemplified by this Couy Griffins episode. The judiciary swiftly and effectively halted Griffins’s lawlessness and presumably will do the same if and when anything similar occurs. But I do think that it is necessary to be clear that this is a battle between election law and its opposite. If we are going to continue to conduct elections according to the rule of law, the kind of nullification of results attempted by Griffins cannot be permitted.

There is no guarantee ahead of time whether the rule of law will succeed in thwarting efforts to defeat it. We can only hope that we continue to take steps that will maximize the chance of its success.