It’s a nightmare scenario for American democracy: The officials incharge of certifying an election refuse to do so, setting off a blizzard of litigation and possibly a constitutional crisis.
And there are worrying signs that the fears of independent scholars, Democrats and a few anti-Trump Republicans could become a reality. We could soon be in legal terra incognita, they said — like the days when medieval cartographers would write “Here Be Dragons” along the unexplored edges of world maps.
“It would be completely unprecedented,” said Nathaniel Persily, an elections expert at Stanford University. “I hate to be apocalyptic,” he added, but the United States could be headed for the kind of electoral chaos that “our system is incapable of handling.”
In Arizona, Kari Lake, a charismatic former television anchor, and Mark Finchem, a state lawmaker, have a very good chance of becoming governor and secretary of state. Both are ardent supporters of Donald Trump and his false claims that the 2020 election was stolen….
In neighboring Nevada, another G.O.P.-controlled county’s plan to count ballots by hand is on hold after the State Supreme Court ruled the process illegal. The Republican secretary of state, Barbara Cegavske, then ordered the hand-counting process to “cease immediately.” Her possible successor, the Trump-backed Jim Marchant, might have acted differently.
One of the Arizona secretary of state’s chief tasks is assembling the elections procedures manual that, once approved by the governor and the attorney general, is distributed to county and local officials. Brnovich refused to accept the 2021 manual proposed by Hobbs, so the state has been using the 2019 edition.
The manual is limited to the confines of Arizona election law. But Finchem could tinker with the rules regarding the approval of voter registration, or ballot drop boxes, in ways that subtly favor Republicans, said Jim Barton, an election lawyer in Arizona. He could also adjust the certification procedure for presidential elections.
“You can imagine a lot of mischief with all the nitty-gritty stuff that nobody pays attention to,” said Richard Hasen, an elections expert at the University of California, Los Angeles.
Looming over all this is a Supreme Court case on elections that is heading to oral arguments this fall.
The justices are expected to rule on a previously obscure legal theory called the independent state legislature doctrine. Conservatives argue that the Constitution granted state legislatures, rather than secretaries of state or courts, the full authority to determine how federal elections are carried out; liberals and many legal scholars say that’s nonsense.
If the court adopts the most aggressive version of the legal theory, Persily noted, it could raise questions about the constitutionality of the Electoral Count Act, adding a new wrinkle of uncertainty.
“My hair is on fire” to an even greater degree than it was in 2020, said Hasen, who published a prescient book that year called “Election Meltdown.”