Richard Hasen thinks a 2024 steal of the election could come about not as the result of a riot, but from the courts accepting the notion that (Republican-controlled) legislatures can simply reject vote counts.
August 7, 2021

Richard Hasen is a legal scholar whose specialty is elections. He thinks a 2024 steal of the election could come about not as the result of a riot, but from the courts accepting the notion that (Republican-controlled) legislatures can simply reject vote counts.

Come 2024, crass and boorish unsubstantiated claims of stealing are likely to give way to arcane legal arguments about the awesome power of state legislatures to run elections as they see fit....

So how does this argument work? Article II of the Constitution of the United States provides that state legislatures get to set the “manner” for choosing presidential elections. Similarly, Article I, section 4 gives the state “legislature” the power to set the time, place, and manner for conducting congressional elections, subject to congressional override. In practice, these clauses have been understood as allowing the legislature to set the ground rules for conducting the election, which are then subject to normal state processes: election administrators fix the details for administering the vote, state courts interpret the meaning of state election rules, and sometimes judges and officials decide when state rules violate state constitutional rights to vote.

For example, in the run-up to the 2020 election, the Pennsylvania Supreme Court decided that a state law requiring that mail-in ballots must arrive by Election Day to count violated the state constitution’s provisions protecting voting rights in light of the election being conducted during the pandemic. It extended the receipt of ballots by three days.

Challenges to this Pennsylvania Supreme Court ruling failed in the federal courts, and other pro-Trump challenges also failed, but four Republican judges on the U.S. Supreme Court expressed support for the notion that legislatures have absolute power to decide how elections are conducted.

Hasen believes the courts could well hand one or more GOP-run legislatures the right to overturn election results.

It’s easy to picture how this might play out in the next presidential election. Imagine that a state legislature sets forth general rules for conducting the 2024 election, but it does not provide every detail about how the election is run. Republican legislatures in states won by the Democratic candidate could seize on some normal election administration rule created by a state or local election administrator or some ruling from a state court, and argue that implementation of the rule renders the presidential election unconstitutional, leaving it to the state legislature to pick a different slate of electors.

I'm sticking with my theory that this won't happen in 2024. There'll be an attempted election theft, but most voters won't think it looks like theft.

There are two kinds of Republicans. Trumpist Republicans want to steal elections by any means necessary, however brazen or transparently anti-democratic. They're comfortable with the notion that if the votes are tallied and a Democrat is declared the winner, they can get that result upended without any blowback (e.g., millions of Democratic voters taking to the streets while the party sues to prevent the steal).

Other Republicans are subtler. As I've said before, they want to steal elections the old-fashioned way: by making sure that many Democrats can't vote. That way the results never show a Democrat winning, and the election looks fair. They're working on that in Georgia, as Vox's Ian Millhiser tells us.

In March, Georgia Republicans passed SB 202, a sweeping new election law that erects obstacles between Georgia voters and their right to cast a ballot.... the most ominous provisions of this new law allow the state election board, which is dominated by Republicans, to seize control of county election boards. Those boards can disqualify voters, move polling precincts, and potentially even refuse to certify an election count.

Republican members of the Georgia state legislature have requested a "performance review" of the election board in Fulton County, which includes Atlanta. Fulton County is the most populous county in Georgia and is heavily Democratic. The request for a performance review sets a process in motion that could lead to a state takeover of the county election board -- temporarily, but almost certainly in time for the 2022 midterms.

First, county election boards normally have the power to adjudicate claims that a particular voter is not lawfully allowed to vote, so this power would be transferred to a GOP-appointed superintendent. If a county board (or a temporary superintendent) determines that a particular voter is “not qualified to remain on the list of electors,” the voter will be disenfranchised and removed from the list of registered voters.

Moreover, because state law permits any Fulton County voter to challenge the right of any other Fulton County voter to cast a ballot, the temporary superintendent could potentially be inundated with requests to disenfranchise individual voters....

A temporary superintendent also has the power to relocate polling sites, and they have some authority to divide, reshape, or combine existing polling precincts. In the worst-case scenario, a Republican superintendent might attempt to shut down most of the polling places in Atlanta, forcing voters to wait in long lines to cast a ballot. At the very least, such a superintendent might move around many voters’ polling places, confusing voters who are accustomed to voting in a particular location.

And that's what will happen. If it works -- and I bet it will -- Georgia Republicans won't even have to consider taking advantage of the final power the temporary superintendent will have.

Finally, county election boards (or a superintendent appointed to replace that board) must certify the results of an election once all the votes in that county are tallied. It’s not at all clear what happens if local election administrators refuse to certify an election because they don’t like the result. But the statewide bodies that could plausibly resolve such a dispute — including the State Elections Board, the state legislature, and the state supreme court — are currently controlled by Republicans.

Old-school Republican vote stealers know that rejecting election results would look bad even to apolitical moderates. They'd rather not do this. They're hoping they can decrease Democratic turnout enough to win on Election Night.

Oh, and that temporary superintendent? If there's one in place for the 2022 election, according to that Georgia law, he or she can't serve long enough to be in place for 2024. But I'm betting that there'll be an amendment to that law after the 2022 elections extending a temporary superintendent's term at least another couple of years -- until 2024.

I could be wrong. Trumpist methods of election theft might be the GOP's weapon of choice in the future. But I think they still want the elections to look legitimate. So I stand by my prediction.

Published with permission of No More Mr. Nice Blog

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