Donald Trump has ramped up his baseless accusations that Democrats are plotting to “cheat” or “steal” the election, raising fears that the former president is setting the stage for an attempt to overturn the result if Vice President Kamala Harris wins.
But any effort to derail the electoral process would run up against an array of new guardrails this time around, legal experts say, making it unlikely that any such attempt would succeed. The new protections include: an electoral law Congress passed in the wake of the Jan. 6 insurrection, recent court rulings, more vigilance from state election officials and more aggressive law enforcement by agencies determined to avoid a repeat of violent scenes from the U.S. Capitol four years ago.
“It’s very hard this time,” said law professor Richard Hasen, an election expert at UCLA….
The other path for Trump would be to try to overturn the result in the House and the Senate. First, he would need Republicans to gain control of both chambers and declare that the Electoral Count Reform Act is unconstitutional. Under that scenario, the Trump team would try to persuade Republican-controlled state legislatures to send in competing slates of electors, even though that is the legal role of governors.
The approach would require securing election victories in both chambers of Congress and in state legislatures like Pennsylvania’s or Michigan’s. At the moment, control of Pennsylvania’s Legislature is split between the two parties, and Democrats rule in Michigan’s Legislature.
The key figure in that scenario would be the House speaker, who could possibly block any candidate from securing an Electoral College majority. That would force a contingent election in the House to choose the next president, with each state delegation having a single vote. Republicans retain an edge and control more state delegations.
If all those political pieces fell into place, the organizers would be gambling that the Supreme Court would rule in its favor and support their flouting of a federal election law.
Matthew Sanderson, an election lawyer based in Washington, D.C., said he thinks it’s extremely unlikely that that scenario would play out to its end.
“Even if Republicans win thin majorities in the new Congress seated on Jan. 3,” he said by email, “I find it incredibly hard to believe that large numbers of GOP Senators and House members who recently co-sponsored and voted for the Electoral Count Reform Act would flip in only a matter of days to pass a resolution calling it ‘unconstitutional’ prior to the Joint Session on Jan. 6.”
But even if that did happen, Sanderson said, Congress cannot just declare its previous laws “unconstitutional.”
“It has no mechanism for doing that,” he said. “Congress can only repeal its prior laws, and a joint congressional resolution would not repeal anything. On that basis, I think even a conservative Supreme Court would say that the Electoral Count Act (as reformed) would govern the process.”…