A movement to deny legitimate election results is thriving, and this worries experts who study democracy. What kind of pressure is that movement putting on our system, and what does it mean for your vote in this November’s midterm elections and potentially future ones?
3 ways election deniers are threatening U.S. democracy, explained
Election deniers are running for office around the country
This November’s midterm elections are likely to bring a wave of election deniers into Congress and top state-level jobs overseeing elections in all corners of the country. That’s according to an analysis of GOP statewide and congressional candidates by The Post’s Amy Gardner, who found that more than half of the Republican candidates deny the 2020 election results.
If elected, these officials could make it harder to vote, allow endless audits of election results or even refuse to sign off on them. And most of those nominees are likely to win, writes Gardner.
The movement’s reach is even wider than candidates running for elected office. Republicans are spending millions to recruit partisan poll workers and watchers, who could disrupt the counting process or raise false claims about it. (Michigan Republican secretary of state nominee Kristina Karamo rose to prominence as a Detroit poll watcher who made false claims about election fraud.)
And the movement may be taking action to disrupt elections in other ways: Trump supporters have been calling their local election offices this fall requesting all kinds of public records, often using suspiciously similar wording, leading election officials to believe this is a coordinated effort to prevent them from getting ready to actually hold an election, report Gardner and Patrick Marley.
There is a brain drain among experienced election officials
To be an election official in America these days can mean receiving death threats for doing your job, as former Georgia election worker Wandrea ArShaye “Shaye” Moss testified to the House committee investigating the Jan. 6, 2021, insurrection at the U.S. Capitol this summer.
“IT’S OPEN SEASON on honest election officials,” tweeted the head of Maricopa County, Ariz., a Republican, after the federal government charged a man with threatening an election official in the county. Another man was sentenced to prison for threatening Colorado’s secretary of state.
Tammy Patrick, a former election official in Maricopa County, said these threats aren’t slowing down.
“Election officials are under-resourced, underfunded, under appreciated — and now they are under attack,” she said. She said one Republican election official in a Trump-supporting county in Wisconsin told her, “I used to be the pillar of my community, and now I’m being treated like the pariah.” Patrick worries that many of these officials and their institutional knowledge will leave the field — when they’re needed more than ever.
We’ve seen how just one partisan local election official can leave elections systems vulnerable to bad actors. After the 2020 election, Trump allies and supporters allegedly attempted to access or copy data from voting machines in multiple states, according to a Washington Post investigation. Some experts worry that if that data fell into the wrong hands, hackers could use it to look for voting machines’ weaknesses.
The Supreme Court could give state politicians much more control over election results
Sometime after the midterms, the Supreme Court is expected to consider a once-marginal legal theory that state legislatures alone — and no other structure of state power — determine how elections are run.
This is called the “independent state legislature doctrine.” It’s a controversial, extremely literal reading of the Constitution, which says: “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
That’s traditionally been interpreted to mean that all of state government — so, state legislatures, but also governors and state constitutions and state courts — has a role in determining how to run federal elections.
But taken to its extreme, this conservative reading of the Constitution could allow state legislatures to overturn the popular vote in their state.
“It’s kind of unimaginable that a state legislature could act outside its own state constitution,” said Richard Briffault of Columbia Law School.
Several conservative lawyers pushing this theory brushed off concerns that it would be used to overturn the popular vote or select alternate electors. Even if it’s theoretically possible, one told The Post’s Colby Itkowitz and Isaac Stanley-Becker, “I can also tell you that as a pragmatic matter, I don’t know of any state legislature that has done that.”
But experts say that if the Supreme Court agrees with this theory, it would give state legislatures much more power to change the way elections are run, and with very little oversight. And they’re especially worried because state legislatures have become less democratic themselves, as the parties draw district lines to keep themselves in power (a process known as gerrymandering).
State legislatures are already acting to make it harder to vote. According to the Brennan Center, last year, lawmakers introduced hundreds of bills to restrict voting access or empower partisan officials.
State legislatures were a key part of former president Donald Trump’s strategy to overturn the 2020 election results. He and his allies pressured Republican state lawmakers to override the popular vote in swing states he lost.
Not coincidentally, the doctrine gained a lot of popularity on the right around then. The power to choose electors is “yours and yours alone,” Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, wrote in emails to Arizona elected officials.
Trump’s team was largely rebuffed. “I said, ‘Look, you are asking me to do something that is counter to my oath,’ ” testified Arizona House Speaker Rusty Bowers (R) to the Jan. 6 committee about the pressure he faced from Trump and his lawyers.
What does this mean for your vote?
For now, there are backstops in place — like other election officials, or the courts — to prevent a rogue official from simply refusing to certify legitimate results, or overturning how people voted.
“The few instances when we’ve seen people try to do something along these lines, it has resolved the right way because the law does try to prevent these things from happening,” Sean Morales-Doyle, acting director of the Brennan Center’s Voting Rights Program, told me earlier this year. (That situation played out this summer in rural New Mexico: When an entire county board refused to certify results, the secretary of state got a court order.)
But democracy experts say we should also be aware that there is a concerted effort to erode those backstops for future elections. If enough election deniers win their various races — including governor, secretary of state, attorney general and lawmakers at every level — those backstops may weaken.
Going forward, the technical and even tedious job of holding elections in America probably will require constant attention, Meredith McGehee, an ethics expert who led the bipartisan watchdog group Issue One said in September.
“The ability to actually run a competent election is something not to be overlooked and taken for granted,” she said.