When politicians, legal experts, and activists say they’re worried that the forces behind Jan. 6th could successfully overturn a future election, the picture they have in mind looks an awful lot like what’s shaping up in Arizona.
Former President Donald Trump's preferred candidates, who are closely aligned with his election lies, are on the verge of taking over the state government from top to bottom after Tuesday’s primaries, potentially sweeping positions from governor (still uncalled) to secretary of state, and taking out the Republican speaker of the state house who stood up to the former president’s attempts to throw out election results.
A fully, or even partially, Trumpified Arizona government could have sown chaos had it been in place in 2020 and followed through on demands from the former president and his allies. The governor or secretary of state might have refused to certify an election, or issued conflicting claims. A state legislature built in Trump’s image could have tried to toss out the results and appoint their own electors. All of this would have set up tough votes for Republicans in the House and Senate in response, who already faced threats to both their careers and lives on Jan. 6.
The Arizona results, along with similar candidates winning nominations in key swing states like Pennsylvania, Nevada and Michigan, raise the prospect of more forceful attempts at these tactics in 2024 should the Republican presidential nominee lose.
But this is a nightmare scenario that the House and Senate were already thinking about long before Tuesday’s results. In fact, the Senate held a hearing on Wednesday on a bipartisan bill to reform the Electoral Count Act designed with exactly this case in mind.
While not foolproof, election experts advocating for the legislation argue it would provide a potentially strong defense against every one of the above possibilities.
Here’s how it would work: The bill would require states to abide by their pre-election laws for appointing electors, making it harder to ignore the election results. If, say, the Arizona governor certified the results, but the secretary of state or other officials sent a rival slate of electors, only the governor’s would count. If the governor were the one refusing to honor the results, it would provide a direct path for federal courts, and eventually the Supreme Court to weigh in, and direct Congress to accept their decision. It would also clarify the definition of a “failed election” that was a prerequisite for some attempts to overturn the results in state legislatures.
“The bill would limit the ability of both the legislature and the governor to mess with genuine election results,” Rick Hasen, an elections expert at UCLA's law school who has supported the legislation, told NBC News. “If the governor tries to not follow state law in certifying the election for Trump or someone like him, there is a procedure to get courts involved.”
Separate from the state concerns, the bill also would address “potential for mischief” in Congress, as Genevieve Nadeau, a lawyer with the nonpartisan group Protect Democracy, put it to reporters Wednesday. It raises the threshold for objections to results and clarifies that the vice president can’t overrule results, which were the two immediate triggers for the Jan. 6th protests that ended with rioters storming the Capitol.
The House is also considering election legislation, and some experts supportive of the Senate bill's goals have raised technical concerns about some provisions. But the Senate version has significant Republican support already and could become law in some form this year. If it does, the unfolding story in Arizona goes a long way to explaining why.