Much has been done to strengthen the federal law governing the counting of Electoral College votes in Congress to prevent the chaos that occurred on January 6, 2021 (more on that below). But intense post-election chaos could occur much earlier at the precinct, county, and state level, where votes must be counted and the results certified at least six days before the Electoral College meets on December 17, 2024.
“We see a big push to withhold certification,” Thomas Joscelyn, a senior fellow at Just Security and a lead author of the House of Representatives January 6 committee’s report, told The Dispatch. “Basically, if the vote doesn’t go Trump’s way, they want to be in a power position to withhold certification.” “They” refers to MAGA loyalists who have heeded Steve Bannon’s call in 2021 to adopt a precinct strategy and be in a position to try to block certification of the vote at the local and state level. “I think all those [efforts] are probably unlikely to succeed and will fail in courts of law,” Joscelyn said. “But there are all sorts of things they could do. It’s sort of like hitting a moving target. There’s too many variables.” He added: “That’s kind of what they did in the lead up to January 6: We’ll try this. Well, that doesn’t work, then we’ll try this. … Keep moving from one sort of anti-democratic measure to another.”
To zoom in on one swing state, consider the ongoing drama over new election rules issued in a 3-2 vote by Trump loyalists on the State Election Board in Georgia. One rule requires local election officials called superintendents to conduct a “reasonable inquiry” before certifying an election, and another rule requires county election officials to have access to “all election related documentation created during the conduct of elections prior to certification of results.” On their face, the rules don’t sound particularly problematic—who is against “reasonable” inquiries and transparency?
“There are ways in which you could sort of say they’re sort of comporting with existing rules and nothing interesting or remarkable has happened,” Derek T. Muller, a Notre Dame Law School professor who focuses on election law, told The Dispatch. He gave the example of a superintendent in charge of reporting vote totals for 18 precincts to inquire why he’s received results for only 17 precincts. “The open question is, well, is this somehow going to be used as a pretext for election officials to ferret around and do other things to try to substantively change vote totals when they don’t have authority to do so? That remains to be seen,” Muller said.
The big concern held by those objecting to the rules change is that they will be used to delay or prevent certification. But the rules don’t “change the deadlines [for certification]. State law fixes the deadlines,” Muller said. “They don’t have any opportunity to move that deadline. But I think the question is whether some of this language is going to invite more mischief.”
One official in the Georgia secretary of state’s office is definitely expecting mischief in the event of a Trump loss. “We have Republican stronghold counties who have majority Republican boards that could just performatively say we’re not going to certify this,” an official in the secretary of state’s office told The Dispatch. “I think that’s very likely to happen.”
What would happen in the event that a county refused to certify a vote total? Muller said a lawsuit seeking a writ of mandamus would be filed telling election officials in effect to do their job. “The court would order them to do it, and then they do it,” he said. “If somebody refuses to comply with a court order, you can just appoint somebody else to do it. So you might delay things very briefly.” ….