How can Trump try to challenge the election results if he loses again

Patrick Marley
| Washington Post

If Vice President Kamala Harris wins in November, election officials and pundits worry that former President Donald Trump and his supporters will not accept that result and could again try to reverse his loss.

In 2020, Trump refused to concede his loss, spread false claims about widespread vote fraud, tried to overturn results in swing states, and tried to pressure Vice President Mike Pence to help him stay in power as riots stormed the US Capitol. Many of these strategies cannot be used again because Trump is no longer in the White House, and state and federal officials have since tightened election laws and policies to make it harder to undermine the will of voters.

But vulnerabilities persist. The risks this year will depend on the details of the election and the closeness of the results. Many election officials and experts worry that false narratives could take off again, eroding public trust and leading to chaos, confusion and, at worst, violence. David Becker, executive director of the Center for Election Research and Innovation, said those overseeing elections in key states are once again preparing to be harassed and threatened to do their jobs.

“This is not a hypothetical,” he said. “This is not fear. This is what happened in 2020 and since then, on a widespread scale.”

Trump has not pledged to accept the outcome of the next election, whoever wins, and has already claimed without evidence that Democrats will cheat. He has also threatened to jail election officials and others “involved in unscrupulous behavior” related to voting.

Trump spokeswoman Karoline Leavitt, in a statement, did not directly answer whether Trump would respect the result determined by election officials, saying only that he would “accept the results of a free and fair election.”

These are some of the vulnerabilities that experts are most concerned about:

Widespread false information

It could again take several days to declare a winner, as some swing states like Pennsylvania and Arizona take longer than others to count votes. As the public waits for results, false narratives could spread quickly.

Trump has a long history of blaming his electoral shortcomings on non-existent voter fraud. In 2020, Trump falsely claimed victory on election night, even though the full results were not known for days. It could do the same this year, and misinformation and disinformation can now spread even faster due to sophisticated AI-generated content and a hands-off approach to social media platforms.

Counting weeks

Recounts are likely to emerge if the results are close, and could drag on for weeks, especially if they get bogged down in lawsuits over whether officials followed proper procedures.

After Trump lost Wisconsin in 2020, he used a recount to try to throw out hundreds of thousands of ballots. The state Supreme Court rejected his arguments in a 4-3 decision. A fight in 2024 could return to one or more state high courts, even in battlegrounds like North Carolina and Arizona, where conservatives control the courts.

“We also don’t know how the threat landscape will transform,” said Norm Eisen, a senior fellow at the Brookings Institution who served as the House Judiciary Committee’s special counsel for Trump’s first impeachment. “The look of the litigation landscape (weeks before the election) is almost never what it looks like in November.”

Demands that delay final results

Republicans and Democrats have already filed dozens of lawsuits over how the 2024 election will be conducted. Many of them have been settled, while others will have rulings in the coming weeks. Some litigation could persist beyond Election Day and influence how courts consider disputes that arise once votes are counted. In 2020, Trump or those who support him lost more than 60 lawsuits for the election.

Even if the lawsuits fail, they can slow down the process and create the impression that the validity of the results is in doubt.

“If you flood the system with more than it can handle, you’re going to have some kind of denial-of-service attack and shut down the whole system,” said Edward Foley, director of Ohio State University’s election law program. “And our court system is not built for large amounts of litigation around election results.”

Breakdown of certification results

There is a tight schedule to determine a winner after election officials count the results. Federal law requires states to certify their results by December 11. The presidential electors meet six days later, on December 17, and send the results to Congress.

The new session of Congress begins on January 3, and the House and Senate must formalize the presidential results on January 6, the day that the US Capitol was attacked by Trump supporters four years ago. The next president will be inaugurated on January 20.

Election experts are concerned that delinquent local or state officials may refuse to certify their results and make it difficult to send electoral votes to Congress on time.

Trump supporters who may not accept the election results “are not going to spend two months packing up their SUVs and driving to Washington, D.C. They’re going to focus their efforts on the county seats, the county courthouses, the small voting centers of the county in hundreds of places across the country if Trump loses,” Becker said.

In recent elections, a small number of local officials have temporarily refused to certify the results, but have eventually done so, often under court order. The new rules in Georgia would make it easier to withhold certification, though experts say the courts would likely step in.

Election experts have fewer concerns about state legislatures trying to change a state’s electoral votes. In 2022, Congress passed the Voter Count Reform Act, which prohibits states from changing the way they name electors after the election and effectively prevents them from reversing the will of the voters.

Disturbances in electoral meetings

Once matters are low-key, each state’s electoral college meetings on December 17 could spark protests. Some officials fear the outages could prevent voters from voting and raise untested questions about how to calculate each state’s official results.

A crucial part of Trump’s attempt to reverse the 2020 results involved his supporters turning up as presidential electors in key states that Joe Biden won. That plot failed, and prosecutions of would-be voters or those who helped them are ongoing in four states.

A similar effort could unfold in 2024, but would be much more difficult to achieve. The Vote Count Reform Act, passed in response to the attempt to overturn the results, sets a higher threshold for Congress to consider electoral votes cast by someone other than a governor. And those impersonating voters could face charges.

As vice president, Harris will preside over deliberations on which electoral votes to count. This role will put her in a politically awkward position because she will have to preside over the final determination of the outcome. She would have a chance to frustrate Republicans if they tried to miscount electoral votes.

Certification of Congress stops

When House members are sworn in on Jan. 3, their first task will be to choose a speaker. In 2023, it took four days and 15 votes to elect a speaker. Later that year, it took three weeks to elect a new leader. Congress would be in uncharted territory if it didn’t have a speaker before Jan. 6, when it must meet to certify the presidential results. The House can perform few functions without a speaker, historians say, and in October 2023 it was largely immobilized as members debated who should lead them.

A wildcard

In 2020, Trump’s allies floated their plan to rally Republican voters in states that Biden won at the last minute. Its full extent did not become apparent until a year or more after the election. Likewise, something new could be tried this year that lawyers and election officials haven’t yet worked out.