Deep dive by Zachary Roth:
The last time America elected a president, it led to a deadly assault on the U.S. Capitol and a failed coup that gravely damaged the political system and marred the peaceful transfer of power for the first time in U.S. history.
A year from now, the nation’s voters will decide another presidential contest — likely one that pits the same two candidates against each other.
Despite a slew of arrests and felony convictions stemming from the events of Jan. 6, 2021, there’s little sign that those who attacked democracy last time have significantly moderated their outlook.
Former President Donald Trump has warned that, if restored to power, he’ll seek retribution against his enemies. An unrepentant election denier runs one house of Congress. Threats of political violence, now commonplace, are said to have affected key voting decisions made by elected officials. And 3 out of 4 respondents to a recent poll think American democracy is at risk in the election, with nearly a quarter saying patriots may have to use violence to save the country.
“The United States electoral process, and indeed American democracy itself, is under great stress,” warned a September report by a group of election experts for the Safeguarding Democracy Project. “No longer can we take for granted that people will accept election results as legitimate.”
Since the tumult of January 2021, politicians, advocacy groups, and media outlets have rightly warned about a range of threats to a free and fair 2024 election — from problems with voter access and election administration to the potential for violence and chaos, or outright subversion of results, in the post-election period.
Perhaps less noticed has been the progress made toward shoring up the system — chiefly in the form of federal legislation making it harder to subvert a presidential election.
That’s why, with a year before voting culminates next November, it’s crucial to take stock of where the nation stands, and to identify where, in the view of election experts and voter advocates, the major vulnerabilities remain….
More, in reference to the ECRA:
But though the law on paper is clear, Foley said he worries about a massive glut of election litigation, all filed in the immediate pre- and post-election period in one close, pivotal state.
The result, and perhaps the intention, could be to overwhelm the courts, potentially delaying decisions until a state risks missing the Dec. 11 “safe harbor” deadline. That could mean its electoral votes might not be counted.
“The American judiciary is not built for thousands and thousands of hours of attention to election matters,” said Foley. “So I think there are reasons to fear that something really gets out of hand in terms of litigation, and you start bumping up against those deadlines.”
That threat could be exacerbated by a little-noticed aspect of the Supreme Court’s June ruling in a major elections case, Moore v. Harper.
The court rejected the claim, pushed by conservatives, that state legislatures have essentially free rein to make election rules, unconstrained by state courts. But, as the election law scholar Rick Hasen has noted, the justices did give themselves the power to second-guess state courts if they decide state courts went too far in regulating an election.
This authority, Hasen has written, is going to be “hanging out there, a new tool to be used to rein in especially voter-protective rulings of state courts. Every expansion of voting rights in the context of federal litigation will now yield a potential second federal lawsuit with uncertain results.”
Those statutory deadlines that Foley worries about also concern David Becker, the executive director of the Center for Election Innovation and Research.
He warns that election deniers — including grifters looking to exploit Trump voters’ fears of a stolen election for financial gain — will be even more effective this time at sowing disinformation if their candidate loses on election night. That could lead to even more, and more unpredictable, political violence.