Dozens of interviews with people deeply familiar or involved with the election process point to a clear consensus: Not only could Trump make a second attempt at overturning an election he loses, he and his allies are already laying the groundwork.
“The threat remains,” said Tim Heaphy, who led the investigation into Trump’s election subversion efforts for the House’s Jan. 6 select committee.
2024 is not 2020. Trump’s path to pulling it off this time is even narrower and more extreme. For one thing, Trump lacks some of the tools he threatened to wield four years ago to upend the transfer of power; today, the military and Justice Department answer to Joe Biden. Trump also needs allies to win elections that would put them in a position to reverse a defeat: Overturning a Kamala Harris victory would require an enormous amount of help from Republican power brokers in statehouses and Congress, some of whom spurned him four years ago.
Trump’s first attempt to exploit the neglected machinery of American democracy also spurred real action by congressional Democrats. Updates to the Electoral Count Act in the wake of Trump’s 2020 gambit aimed to bind vote counters, election officials and even Congress to the results certified by state governments, all of which makes it tougher, in theory, to steal an election.
But Trump is heading into the 2024 election informed by his failure to overturn the results four years earlier. And his incentive to obtain the powers and protections of the White House is likely stronger than ever: If he loses, Trump will face an avalanche of criminal proceedings that could last the rest of his life. If he wins, they are likely to go away.
“No one knows exactly what Trump’s attack on the electoral system will be in 2024,” said Rep. Jamie Raskin (D-Md.), a member of the Jan. 6 select committee. “What will he do this time?”…
It’s possible Trump and his allies won’t make a sustained effort to overturn his election defeat. An overwhelming Harris victory would make it harder for Trump to rally Republicans to his side. (If Trump wins, no one expects a comparable effort by Democrats to subvert the election.) But to a person, election observers, elected leaders and some of Trump’s own allies agree on one operating premise: On election night, no matter what the results show, how many votes remain uncounted and how many advisers tell him otherwise, Donald Trump will declare himself the winner.
And from there, he could embark on a risky but plausible challenge to overturn the legitimate election results and install himself in the White House. Here’s how it could happen….
This year, if Republican-led legislatures appoint alternate electors, then pro-Trump slates could move ahead to Congress alongside the pro-Harris slates approved by governors. (Five of the seven swing states have Democratic governors. And in a sixth state, Georgia, Republican Gov. Brian Kemp resisted Trump’s efforts to overturn the state’s results in 2020.)
That would be a direct challenge to the post-Jan. 6 effort intended to prevent this kind of constitutional clash. In 2022, Biden and Congress passed a law reforming the Electoral Count Act of 1887, intended to clarify that only governors — not legislatures — are empowered to send certified slates of electors to Congress, unless a court steps in to override the results. Harris has pledged that when she presides over the counting of presidential electors on Jan. 6, 2025, she will follow this law. But if any legislatures send her an alternate slate, there is an open constitutional question as to whether she must also offer it to Congress for consideration. What Congress would do with the slates backed by legislatures is equally uncertain, but their very existence would cast a cloud over the proceedings and, like everything else, fit neatly into a Trump pressure campaign.
Eastman, who had his law license suspended because of his role in the last election, told POLITICO that the theory he espoused in 2020 remains viable — and perhaps has even been strengthened — by the legal battles and law changes of the last four years. He has long argued that when it comes to the Electoral College process, state legislatures cannot be bound by federal law, since the U.S. Constitution grants them “plenary” — absolute — authority to choose electors. He says the law enacted by Biden actually makes the Electoral Count Act “more unconstitutional, not less.”
“The Article II power remains what it was (and could never have been restricted by statute, in any event),” Eastman said in an email. Whether any GOP congressional leaders agree with him on Jan. 6, 2025, will determine whether Trump can make a last-ditch effort to reverse the outcome….
Johnson has not yet telegraphed how he will handle the joint session. Johnson was a key ally in Trump’s 2020 bid to reverse the election results — including on Jan. 6, 2021, when Johnson backed challenges to Biden’s presidential electors. In recent interviews, the Louisianan has said he intends to “follow the Constitution” and federal law. Left unsaid: whether Johnson’s interpretation of the Constitution would comport with Eastman and Chesebro or with the mainstream legal community. His office has declined repeated requests to clarify his view on the Electoral Count Act and whether he considers it binding on Congress.
If Johnson believes, like Eastman, that the laws governing the joint session are unconstitutional, he could assert unprecedented authority to affect the process — all under the guise of following the Constitution. That could include taking steps to ensure that pro-Trump electors embraced by state legislatures get an up-or-down vote, even if they conflict with slates endorsed by governors. It could include permitting hours of floor time to air theories of voter fraud, while holding the presidency in limbo. It could also include lobbying allies to reject pro-Harris electors in order to prevent either candidate from receiving 270 Electoral College votes. And it could also include simply gaveling the House out of session to prevent the joint session from continuing. Each move would likely trigger intense legal battles, putting the courts — and most likely the Supreme Court — in the position of deciding how to resolve unprecedented power plays by the most prominent actors in government….
Ultimately, a handful of key pieces would have to fall into place to prevent the certification of a Harris victory: It would require a good election night for Republicans and significant complicity among Trump allies at virtually every level of government.
And it would be a brazen display of power that would outstrip the multifaceted gambit of 2020.
“Then you’re really getting into the realm of lawlessness,” said Rick Hasen, an election law expert at UCLA. “If people are going to be willing to just ignore the law and declare someone the winner, then you’re talking about a real coup.”