This week, Americans mark the one-year anniversary of a violent attempt to overturn a free and fair election. That event, the January 6 assault on the U.S. Capital by supporters of former president Donald Trump, was the first time in American history that the presidential transition was not willing and peaceful. What happened that day was disgraceful, and yet it was also quixotic—at no point did the mob have any real chance at permanently stopping Congress from certifying the election and affirming Joe Biden as the president-elect.
But just because the assault on the capital failed doesn’t mean that American democracy isn’t facing real turmoil. It is. Among the various democratic concerns—executive branch expansion, erosion of liberal values like free expression and due process, threats of court-packing, and so on—the greatest and most urgent threat is the concerted effort to undermine the very foundation of democracy: free and fair elections.
“The partisan politicization of what has long been trustworthy, non-partisan administration of elections represents a clear and present threat to the future of electoral democracy in the United States,” reads a letter signed by 150 scholars of American democracy. “Defenders of democracy in America still have a narrow window of opportunity to act. But time is ticking away, and midnight is approaching.”
While a bit melodramatic, the letter does get at a real problem of democratic decay in America, of which January 6 was just a particularly visible and violent manifestation. Of course, the political violence of that day deserves condemnation, but the broader Republican effort to find a constitutionally legal way to overturn legitimate election results is even more concerning.
Though their efforts failed in 2020, Republican Party activists and leaders are systematically working to reshape the American election apparatus so that next time, perhaps in 2024, their attempts to overturn a free and fair election using legal means just might work.
Elections can be understood as a two-step process. First, what happens up to and during the election: who can vote, how and when ballots can be cast, if voters need identification, and so forth. Second, what happens after the election: how votes are counted and results certified.
While the first category is undoubtedly important, there is a categorical difference between tinkering with election procedures and completely overturning the will of the voters after the fact. Right now, the greatest threat to American democracy lies not in the technicalities of election administration but in wholesale election subversion.
This is a concern for all elections—from local school boards to governorships to the U.S. House and Senate. For now, however, consider how election subversion could imperil the legitimacy of America’s most important election: that of the presidency.
For those unfamiliar with the American electoral system, a body called the Electoral College, rather than voters themselves, chooses the president. Here’s how it works: Each state has a number of electoral votes equal to its members of Congress (Senators plus Representatives). When voters cast their ballot for president, they’re actually voting for a slate of electors who will then cast votes in the electoral college for a presidential candidate. While the Constitution leaves it up to the individual state legislatures to determine how their state will select electoral college delegates, almost every state has set up a system whereby the presidential candidate who earns the most votes on election day will get all of that state’s electoral delegates (the exceptions being Maine and Nebraska, which use a proportional system.) About a month after the actual election, each state’s Electoral College delegates meet and cast their official vote for president. The governor of each state then sends these results to Congress, which then counts and certifies the final electoral tally.
This is the process that Donald Trump and his supporters tried to undermine in the 2020 election that culminated in the January 6 Capital attack. Unfortunately, Republicans nationwide have continued the assault since. They have done so not with political violence, but by taking aim at the vote-counting and certification process at three levels of government: county, state, and federal. If they succeed, Americans could find themselves ruled by a president that they never elected. Here’s how that might come to be.
The County Level
In most states, votes are tallied and certified by county election boards and then sent up to the state, which compiles all the county results. But what if county election officials, rather than acting as neutral arbiters, use their influence to try and overturn election results they don’t like?
That’s precisely what happened in Wayne County, Michigan, in 2020, when Republicans on the Board of Canvassers used fake claims of election fraud as a pretense to refuse certification. Doing so would have been enough to flip the state to Trump, given the Democratic lean of the county. Eventually, the Republican board members did certify the results. But then, President Trump called them to pressure them to rescind their votes, which they subsequently tried to do. Fortunately, it was too late, and the results went up to the state and were eventually certified.
But this is little comfort for future elections. In swing states across the country—Michigan, Arizona, Pennsylvania, Georgia, and Wisconsin—pro-Trump activists are trying to take over canvassing boards. It’s not hard to imagine a future election in which county-level officials refuse certification for political purposes and throw a state’s election results into question.
The State Level
Most states, just like most counties, rely on election boards to certify election results. Unfortunately, these state boards have the same weakness to partisan actors as the counties. Several rogue actors on a state canvassing board refusing to certify election results would throw the state’s election into turmoil.
A similar threat comes from other statewide election officials—namely Secretaries of State and Governors. Given their broad election powers, a partisan Secretary of State could manipulate election results to overturn a result they don’t like. That’s precisely what Donald Trump and his Republican allies, including Senator Lindsay Graham, tried to get Georgia Secretary of State Brad Raffensberger to do in 2020. In a recorded phone call, Trump said that he just wanted Raffensberger to “find 11,780 votes”—just enough to flip the state in Trump’s favor. Thankfully, Raffensberger refused. But pro-Trump politicians who would be more amenable to manipulating vote totals are gaining traction. In Georgia, for example, Raffensberger’s primary challenger for the 2022 Republican nomination has echoed Trump’s claims of a stolen election and said that Raffensberger “compromised” the state’s election integrity.
Even so, the greatest threat on the state level comes from the state legislatures themselves. Because the U.S. Constitution gives state legislatures broad power over choosing electoral delegates, a partisan state legislature could dismiss legitimate election results, opting instead to send a different slate of delegates to the Electoral College. Such a blatantly undemocratic move isn’t inconceivable. Arizona’s Republican state legislature, for example, is considering a stunning bill that would allow the legislature to “revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election” by “majority vote at any time before the presidential inauguration.” Georgia, Missouri, and Nevada are considering bills similar to that that would allow their legislatures to assert their ultimate control over the certification of results
Despite attempts to get state legislators to take such action to overturn Biden’s victory in 2020 (Trump tried and failed to get Georgia Governor Brian Kemp to begin a special session of the legislature to do just that), no states did so. But if a state legislature decides to overrule their voters in the future, it’s unclear if there would be any constitutional remedy to stop them from doing so.
The Congressional Level
Congress, with the Vice President presiding, is responsible for counting the electoral college votes and officially certifying the results. This is the process that Trump’s supporters tried to interrupt on January 6. Even more distressing than the violence of the day is that over half of the Republican members of Congress—147 out of 272—voted against certification and, in doing so, voted to overturn the results of a free and fair election. While the attempt failed, it points to yet another weakness in the certification process that Republicans are keen to exploit and could do so more effectively in the future.
Importantly, many of these tactics could also be used to overturn results up and down the ballot. Only the steps directly involving electoral college votes are unique to the presidential election. State legislatures, state executive offices, and Congress are all vulnerable to the other forms of election subversion.
Competitors or enemies?
The only reason such anti-democratic action is a real possibility is that an anti-democratic fervor has taken over the American right. After a year of Trump’s repeated and continued false claims of a stolen election—claims that were parroted by his fellow elected Republicans and across conservative media—an astounding 75% of Republicans think that Trump won the 2020 elections, 64% say they don’t trust that elections in America are fair, and only 33% say they’ll trust the election results in 2024 if their candidate loses. Among Democrats, those numbers are 2%, 13%, and 82%.
None of this is to say that Democrats are blameless in America’s democratic erosion—they’re not. After Trump’s election in 2016, 68% of Democrats said that he wasn’t fairly elected. John Lewis, the civil rights icon and former congressman, refused to attend Trump’s inauguration because he didn’t “see Trump as a legitimate president” and thought “the Russians participated in helping this man get elected.” Stacey Abrams, the Democratic candidate for Georgia governor in 2018 who refused to concede her loss, faced little backlash from her party and is set to receive the party’s nomination again this cycle.
And yet, Democrats are not systematically attempting to clear the way for election subversion. That distinction belongs to the Republican Party, where falling in line with Trump’s claim of a stolen election has become just about mandatory. Consider how Liz Cheney, the congressmember from Wyoming and the loudest critic of Trump’s election lies, was voted out of her party leadership position for refusing to fall in line.
Nevertheless, despite all these very real concerns, Americans should avoid hyperbole and alarmism. Going back hundreds of years, Americans have approached elections with a sense of hysteria. The French observer of American democracy, Alexis De Tocqueville, wrote as much in his 1835 Magnum Opus, Democracy in America:
For a long while before the appointed time is at hand the election becomes the most important and the all-engrossing topic of discussion. The ardor of faction is redoubled; and all the artificial passions which the imagination can create in the bosom of a happy and peaceful land are agitated and brought to light. The President, on the other hand, is absorbed by the cares of self-defence. He no longer governs for the interest of the State, but for that of his re-election; he does homage to the majority, and instead of checking its passions, as his duty commands him to do, he frequently courts its worst caprices. As the election draws near, the activity of intrigue and the agitation of the populace increase; the citizens are divided into hostile camps, each of which assumes the name of its favorite candidate; the whole nation glows with feverish excitement; the election is the daily theme of the public papers, the subject of private conversation, the end of every thought and every action, the sole interest of the present. As soon as the choice is determined, this ardor is dispelled; and as a calmer season returns, the current of the State, which had nearly broken its banks, sinks to its usual level.
American democracy is resilient. It’s survived for over 240 years and is unlikely to fall apart now. But even if the chance of democratic collapse is tiny—say, one percent—that is worthy of serious concern and unwavering vigilance. And the fact that the 2020 election hinged, to some extent, on a few individual actors rebuffing undemocratic demands from their party and president should be seen as a check engine light for American democracy.
Recipes to safeguard democracy
With Trump gearing up to run for president again in 2024, American democracy faces the potential of a constitutional and democratic crisis. Though this isn’t the most likely scenario, Americans need to take seriously the possibility that it could happen and take action now to prevent it. So what can Americans do?
The Republican Party needs to condemn and take action to restrain their party’s ongoing assault on democracy and elections. From local canvassing boards to state legislatures to secretaries of state to congressmembers and senators, democratically-minded Republican officials need to put democracy ahead of their individual political fortunes.
The Democratic Party, for its part, needs to excise all undemocratic instincts within their coalition. Any hint of hypocrisy—like their refusal to accept Trump as a legitimate president or Stacey Abram’s refusal to concede in 2020—will undermine any legitimate attempts to shore up democratic norms and our election apparatus. Moreover, on the legislative front, congressional Democrats should prioritize passing laws tailored to block partisan actors from overturning election results rather than mashing all their election priorities into the same piece of legislation as they did with the For the People Act. Among the provisions that could be included in such a more narrowly focused bill are the following:
–> Mandate the use of paper ballots instead of, or in addition to, electronic voting systems so that there is a record of election results.
–> Institute a clear chain-of-custody for these paper ballots.
–> Change the rules to make it more difficult for members of Congress to object to the electoral college count. Right now, it just takes one senator and one congressmember to raise an official objection, a bar that could be raised.
–> Restrict the ability of states to remove local election officials, allowing them only to do so with a legitimate reason such as incompetence or poor performance, and explicitly outlaw removing them for partisan purposes.
–> Allow individuals to sue their state for failing to certify valid election results.
Most importantly, though, all voters, regardless of party, should make their vote contingent on a candidate being explicitly pro-democracy and anti-election subversion. Ultimately, all the legislation, all the opinion pieces, and all the safeguards in the world cannot stop a democratic backslide. Only the voters can do that.
Seth Moskowitz is an associate editor for Persuasion and a freelance journalist writing about American politics and culture.
Cover Photo: Supporters of former President Donald Trump inside US Congress – Washington DC, January 6, 2021 (Saul Loeb / AFP).
If you like our analyses, events, publications and dossiers, sign up for our newsletter (twice a month) and consider supporting our work.