American democracy survived the 2020 election because the Vice President, Senate, and Congress chose to follow the clear letter of the law and simply acknowledge that an already fully counted, validated, and certified election was legitimate.
The path forward in that case was so blatantly obvious that officials who pursued alternative routes, including former President Donald Trump, now face plausible legal threats.
The nightmare scenario for 2024 would likely not look like January 6th, 2021, and newly unveiled bipartisan bills to reform the process for certifying presidential elections acknowledge this difference.
The leading fear among legal experts is that the House and Senate are presented with an election in which there’s a dispute over the winner, likely because one or more corrupt governors, election administrators, or legislatures have decided to substitute their own slate of electors that contradict the actual vote count. As the January 6th hearings have emphasized, this was a key part of efforts to keep Trump in office after he lost the election.
While those schemes failed in 2020, it's easy to imagine a similar effort gaining much more traction in 2024. The midterms feature a number of Trump-allied candidates in key states, like gubernatorial nominee Doug Mastriano in Pennsylvania, who actively pushed to overturn Trump's loss. Even a single elected official determined to subvert the next election could be enough to trigger a crisis.
What this means is that stopping a future stolen election might require Congress not just to sign off on an obvious winner, but actively override one or more states who submitted false or competing claims. Not only that, both the House and Senate would have to agree for the objection to succeed. If January 6th is any indication, legislators would face enormous partisan pressure, and possibly threats of violence, in the run-up to the vote.
The bipartisan legislation under consideration would try to head these scenarios off at the pass both by making it harder for rogue actors to submit false election results, and by narrowing the circumstances in which Congress gets to decide the winner.
“There’s a number of provisions where this seeks to limit opportunities for mischief at the state level involving governors and other officials,” Edward B. Foley, a law professor at The Ohio State University said on Thursday at an event held by the Bipartisan Policy Center. “Then there are a number of ways that seek to limit opportunities for mischief at the federal level, mostly involving Congress and the Vice President."
Among other features, like clarifying the Vice President's ceremonial role, the bill would:
- Require states to follow the laws that were agreed upon before the election. That makes it harder for a state legislature to throw out the results afterwards and submit their own slate of electors, which Trump is still pushing state leaders to do as of this month. The bill would also only treat results certified by the state's governor as legitimate (assuming they passed muster with the courts), in order to prevent a scenario in which a partisan secretary of state or legislature tries to submit a competing claim that would force Congress to choose between them.
- Create a new path to decide disputes that do arise, by empowering a three-judge panel and ultimately the Supreme Court to quickly weigh in on cases brought forth by candidates, and by directing Congress to accept their decision. In other words, there's a plan in case the governor submitting the results is the bad actor.
- Raise the threshold for objecting to the results in the House and Senate to 20% of members in both chambers. Currently, you just need one person in each to trigger a debate. After the 2020 election, it was Sen. Josh Hawley, R-Mo. who took the lead, which put a surge of political pressure on Republicans to follow him, and gave the mob on January 6th a vote they could try to influence members over. Again, the goal is to reduce the number of cases in which House and Senate members would have to weigh in on a heated partisan dispute that could determine the outcome of the election.
None of this is foolproof. If our political system deteriorates to the point that even state and federal judges are determined to overturn a free and fair election, for example, the failsafe won’t work. Congress could still challenge election results, and if they have the votes, choose not to certify them. But it raises the bar significantly at every level, which is why supporters ague the next try at overturning an election would be harder to pull off if it becomes law.