My New Essay in the Wall Street Journal: “Why It Will Be Harder for Trump to Challenge This Year’s Election”

I have written this Essay for the Wall Street Journal (appearing in print on Saturday). It begins:

There are abundant signs that Republican nominee Donald Trump won’t accept the results of the 2024 election if he loses. He has taken to describing the Democrats’ switch from Joe Biden to Kamala Harris as a “coup,” suggesting that the election has already been rigged. He and his allies regularly claim that voting by noncitizens is rampant, though it’s rare. And he’s told reporters that he will accept the election results only if “everything’s honest,” making it plain that he’s prepared to conclude otherwise.

There is a decent chance we will not know whether Trump or Harris has won by Nov. 6, the day after the election. There may also be bumps in the road during the weeks before Congress counts the Electoral College votes on Jan. 6. Trump’s campaign co-manager Chris LaCivita signaled in July that a postelection legal and political battle lies ahead: “It’s not over until he puts his hand on the Bible and takes the oath…. It’s not over on Election Day. It’s over on Inauguration Day, ‘cause I wouldn’t put anything past anybody.”

No doubt we’re on track for another tense postelection season. The race is now looking very close, which leaves more room for uncertainty on Election Day and beyond. States such as Pennsylvania and Wisconsin have failed to pass laws that would let them process mail-in ballots more quickly before Election Day, which means that Trump could again appear to be ahead on election night only to see his lead disappear as more votes are counted. He may again declare victory prematurely.

But there is also some good news: The country is now in far better shape to avoid the kind of protracted mess we saw in 2020. The fact that we are no longer facing the emergency demands of a pandemic is a big help, but no less important are the electoral guardrails that have been put in place since then….

There are already plans to make it possible to sow these seeds of doubt by delaying vote counts. In Georgia, for example, Trump loyalists have made changes to state rules that give county election boards the power to put off the certification of election results if they choose to investigate purported improprieties. Many of these local election officials have echoed the former president’s unsubstantiated claims of election fraud in 2020, despite the insistence of the state’s Republican Gov. Brian Kemp and Republican Secretary of State and chief election officer Brad Raffensperger that the election four years ago was fair.

Trump supporters may hope that by tying up some vote counts until Jan. 6—the deadline for announcing an Electoral College winner—they can deny either candidate an Electoral College majority, triggering what some call a “contingent election” under the Constitution’s 12th amendment, with each state’s House delegation casting a single vote. Because Republicans are likely to control more state delegations than Democrats even if Democrats retake the House (the new Congress takes office before the count), this overriding of the Electoral College would likely favor Trump.

But it is unlikely that frivolous attempts to delay certification would prevent a state from submitting its Electoral College votes to Congress in time. State legislatures set certification deadlines, which should override administrative foot-dragging even if sanctioned by state election boards. State courts and federal courts would likely intervene to make election officials do their jobs and prevent disenfranchising a state’s voters from participating in the presidential election.

In addition, under the 2022 Electoral Count Reform Act that Congress passed in response to the 2020 election shenanigans, if a state doesn’t certify its count, Congress must remove that state’s Electoral College votes from the tally of what counts as a majority. So a delay should not trigger a special election in the House to choose the next president…..

Share this: