The Electoral Count Reform Act of 2022 is the most recent safeguard against manipulation in the democratic process, passed in response to the tumultuous times of the 2020 election era. Despite both parties exhibiting agreement on the necessity of the reform, they ignored glaring vulnerabilities, particularly at local levels that have been taken advantage of by ambitious officials. These individuals, having abandoned democratic principles, have adopted an unsettling strategy of declining to certify elections at county levels, noted by none other than Matthew Seligman, a scholar at Stanford’s Constitutional Law Center, and author of the confrontational piece ‘How to Steal a Presidential Election.’
While Democrats scramble to take advantage of the Electoral Count Reform Act changes, efforts have shifted towards empowering county and state-level boards of election with certification authority of election results. In an audacious move in 2020, Trump strove to influence Republican Congress members and former Vice President Mike Pence to dismiss the Electoral College votes after the unexpected victory of Joe Biden. The modifications in the electoral act have curtailed this approach, cementing the non-objective role of the vice president in vote-counting and requiring more votes in Congress to dispute election outcomes.
The focus now is on procedural changes in vote-counting and election certification at crucial state and local levels. Earlier this year, the Georgia State Election Board initiated sudden rule changes, and commissioners in a major Nevada swing county voted against certifying elections. Brad Raffensperger, the Georgia Secretary of State and a staunch Republican, voiced his concerns about potential barriers in election results and the undermining of the chain of custody safeguards.
Despite the potential harm these loopholes could cause, any attempts by local officials to reverse the electoral results are likely to be thwarted. High-ranking officials like the state election administrator or the governor, and even the courts, can intervene and halt efforts to overturn results. This scenario was witnessed in 2020 when Trump and his supporters’ numerous lawsuits challenging the election outcome were dismissed.
Yet, election law experts continue to express concern about the lurking vulnerabilities in the system. ‘Means, motive, and opportunity are here to flip this,’ warned Lawrence Lessig, a Harvard Law professor and Seligman’s co-author. This stark warning underlines the dangerous possibility of exploiting the perceived weaknesses at county levels, according to Adav Noti, executive director of the Campaign Legal Center.
The 2022 Electoral Count Reform Act was instituted to reinforce the structural fabric of American democracy, especially in the presidential election. However, it has also unearthed potential tactics that could subvert this very fabric. The Act requires a state’s governor to certify the state’s presidential electors six days before the mid-December elector voting. This provides a reasonable timeframe to handle any disputes over states’ election results.
A conceivable situation would be a leading candidate in Georgia losing their lead after a number of absentee ballots are disqualified by a state court judge, with the other candidate now leading. The original candidate might appeal, but the rival campaign’s lawyers could stall the court system with numerous filings before an appeal decision is made. ‘There are a million ways for lawyers to slow a process down… they’ve won, even if they ultimately shouldn’t have won,’ expressed Lessig in a chilling warning to the very scenario he dubbed the most frightening prospect ahead of November.
Uncertainties arise regarding missed certification deadlines. Since the 2020 election, numerous county officials have refused to certify election results, potentially disqualifying a state’s electoral votes from being taken into account by Congress on January 6. These occurrences have raised fears of manipulated delays and resultant certification failures, as seen in Georgia due to last-minute rule alterations by the State Election Board.
Democrats responded to these new rules with a request for an Atlanta judge to confirm that counties’ certification deadlines are legally binding. This request aims to prevent potential chaos in November and ensure that new rules don’t alter the mandatory deadline for counties to certify their results.
In response to these fears, Republican board member Janice Johnston commented that the new rules would discourage unexpected questionings of results. Additionally, Janelle King, another board member, expressed that no approved rules could allow county officials to illegally delay certification. Such assurances, however, do little to alleviate the public’s apprehension of a deadlocked democratic process.
Spokesperson for Georgia’s Secretary of State, Mike Hassinger, emphasised that counties are legally required to certify results by the prescribed deadline, and any deviations would not be tolerated. Emphasising the point, David Becker, the executive director of the non-profit Center for Election Innovation & Research, warned of potential lawsuits awaiting non-compliant counties after the deadline.
The newly minted Electoral Count Reform Act is, however, devoid of historical precedent, which is a primary source of judicial guidance when it comes to interpreting laws. If a governor refuses a court order to certify the state’s elections for a particular candidate, the Act does not provide a clear procedure for subsequent actions.
Given this lack of precedent, courts could be hard-pressed to navigate through potential disputes related to the Act’s enforcement. Commenting on this, Sylvia Albert, the director of Voting and Elections for the nonprofit Common Cause, expressed her concern over the judicial ‘black hole’ created by the Act.
As the 2022 mid-term elections and the 2024 presidential elections loom, the need for unambiguous election laws becomes critical. Legal experts and election law practitioners like Justin Levitt, an election law professor, lean on historical outcomes as an analytic beacon, referencing past experiences, such as the overwhelming defeats Trump faced in his attempt to overturn an unequivocally legitimate 2020 election result.
The challenges posed by the Electoral Count Reform Act and its potential for exploitation underscore the need for rigorous democratic vigilance. The Act has emerged as a controversial piece of legislation, whose application and enforcement remain subject to the interpretation of courts, and ultimately, the bedrock of democratic principles entrenched in the American political landscape.