The sunny reading of the threat posed by Donald Trump goes like this: Yes, Trump hatched multiple schemes to overturn the 2020 election, but their implausibility, his incompetence and the unwillingness of Republicans to play along suggest there’s little to fear from a rerun in 2024.
We’re talking about the 2022 gubernatorial races in Wisconsin, Pennsylvania and Michigan. The New York Times reports that Democrats are quietly worried about these races, in part because GOP governors in those states will be able to dramatically ramp up the anti-democratic tactics.
In all three states there are GOP-controlled legislatures, and if any of the three Democratic governors in them — Tony Evers (Wis.), Tom Wolf (Pa.) and Gretchen Whitmer (Mich.) — are replaced with a Republican, it will mean unified GOP control.
Most obviously, that will mean ramped up voter suppression and other anti-majoritarian tactics. Indeed, as the Times notes, GOP lawmakers and candidates for governor in these places are pushing more such proposals, making these Democratic governors bulwarks against more deeply entrenched minority rule.
But perhaps more important is what this means for future election subversion. In these states, Republicans are pushing various efforts to “audit” or “recount” the 2020 voting, which should be seen as dry runs for manufacturing pretexts for subverting future outcomes.
GOP governors would make it easier for Republicans to do just that, by, say, overturning a 2024 presidential loss in their state. As the Times notes, a GOP governor could refuse to certify a slate of electors for a Democratic winner of the popular vote, or send rogue electors for the GOP candidate, in defiance of the popular vote, for Congress to count.
This would require cooperation with the state legislature, but unified GOP control makes that more likely. And while this might not survive court challenge, in theory it could. What then?
Well, a GOP-controlled House of Representatives could count the rogue electors. A Democratic Senate might refuse to count them, but the Electoral Count Act of 1887 stipulates that both chambers must invalidate them, or they do, in fact, count. A GOP-controlled House and Senate could both count the rogue electors, an even worse scenario.
“Although it would require many guardrails to fail,” Genevieve Nadeau, counsel at Protect Democracy, told me, “it is theoretically possible that a governor, with the support of a legislature of the same party, could certify a result contrary to the popular vote and that Congress would then count those electoral votes.”
All of which requires reform, at two levels. The first is the state certification process, which could address the above scenario: Democratic lawyer Marc Elias suggests Congress should remove control of certification of electors from officials like governors and place it in the hands of less partisan actors, such as state justices.
The second level would be revisions to the Electoral Count Act. Richard L. Hasen’s blueprint recommends making it harder in various ways for Congress to invalidate the correct electors or count the wrong ones in situations where multiple slates are sent. Others call for clarifying the vice president’s role in counting electors as purely ceremonial.
These would close off other pathways, some of which Trump did try with plenty of GOP support. He tried to get states to send alternate rogue electors, pressured congressional Republicans to toss out the correct electors, and pushed his vice president to refuse to count them.
All this does in some ways seem far-fetched, and some observers continue to suggest that Trump’s incompetence and failed schemes are at least partial causes for reassurance. But such schemes might be attempted even if Trump himself isn’t the 2024 nominee.
What’s more, any discussion of this is incomplete without noting that other Republicans are running on versions of Trump’s “big lie” about 2020, or even on an open vow that future losses should be subject to overturning. More such Republicans will be in key positions in 2024.
Indeed, these gubernatorial contests will help test how worried we should be about the threat. The media should hound the living heck out of GOP candidates in those races until they unequivocally renounce any intention of certifying electors in defiance of the popular vote.
It may fall on Democrats to force this issue to the fore, to get the media focused on it. “Democratic candidates should — and will — keep this fight front and center,” Ben Wiker, the Democratic Party chair in Wisconsin, tells me.
Democratic voters in those states should focus on this as well. Wikler points to early positive signs, noting that the issue is “already galvanizing volunteers and activists in a way I wouldn’t have thought possible in a midterm.”
Here’s a prediction: If GOP gubernatorial candidates are pressed in this regard, some will fudge their answers. To keep the Trump rump happy, they will say something like: “If the 2024 election is conducted with integrity and with no signs of fraud, then of course I would certify the proper electors.”
That’s a dodge, and they shouldn’t be allowed to get away with it. And if they do say this, then perhaps those who are sanguine about the continuing threat might rethink matters.