At first glance, the spectacle of the Incredible Shrinking Kari Lake might be cause for optimism. Lake is contesting her loss in the Arizona governor’s race, but in so doing, she’s shriveling into an almost cartoonish figure with no hope of prevailing — a sign, along with the defeat of other key election deniers, that this year’s outcome has sharply diminished the denialist threat.
But on closer inspection, the efforts by Lake and other Republicans allied with her — which include refusing to certify election results — show that the threat of Trumpist election denial is very much alive. This strengthens the case for fixing the Electoral Count Act of 1887, which would safeguard against such threats in the future.
Unfortunately, some election reformers are worried that mending the ECA might not get done in the lame-duck session. That would mean it doesn’t get done at all once Republicans take control of the House next year.
“I’m deeply concerned,” Matthew A. Seligman, a legal scholar and longtime proponent of ECA reform, tells me. “It’s getting late. I’m concerned that things are slipping.”
Election law scholar Richard L. Hasen adds that he’d like to see Democratic leaders “affirmatively” declare that ECA reform is a lame-duck “priority.”
“There’s no way Republicans in the House are going to move anything changing the rules that Donald Trump tried to exploit,” Hasen told me. Trump’s 2020 election-theft effort tried to exploit many of the ECA’s flaws, and the reform under consideration would close off those pathways to a future stolen election.
Versions of ECA reform have advanced in the Senate and the House, but it’s hard to see either passing as a stand-alone bill with only a few weeks left in the lame-duck session. That would chew up valuable floor time with much else left to do, including funding the entire government.
So, the most likely option at this point, a congressional aide tells me, is for ECA reform to get attached to that end-of-year spending bill. It’s reasonable to worry this might not happen, or to remain vigilant until it gets done.
The case for attaching ECA reform to a spending bill is complicated. Right now, 10 GOP senators support the Senate version of reform — the number required to overcome a filibuster. Yet even if ECA reform were to get a stand-alone vote, Trumpist GOP senators — such as Josh Hawley of Missouri or Ted Cruz of Texas — could seek to derail it with poison-pill amendments.
What’s more, a stand-alone vote could raise the profile of ECA reform, subjecting it to attacks from Trump and others. That could drive away some of those 10 supportive GOP senators. Attaching reform to a spending bill might get it through with less attention.
The flip side of that, however, is that Democrats are still relying on GOP Senate leaders to agree to attach ECA reform to a spending bill, and on 10 GOP senators to support it — which seems less than reassuring.
The Arizona shenanigans show why. With Lake contesting her loss, the election board in GOP-controlled Cochise County is simply refusing to certify the results. As a New York Times account reveals, this is entirely baseless, and the rationale is laughable: One official admits it’s because small counties are “sick and tired of getting kicked around and not being respected.”
What this really shows is that election denialism has been reduced to the idea that when Democrats win elections, it doesn’t count. Although this is absurd and unlikely to work this time, it still shows the need for ECA reform.
That’s because in a future presidential election, a GOP-controlled state legislature could seize on exactly this kind of thing — a local refusal to certify results — as its excuse to appoint electors for the losing presidential candidate. If the GOP-controlled House counted those electors next time, under current law it could lead to a stolen election or major crisis.
“An unscrupulous state legislature would be looking for a fig leaf to appoint an alternative slate of electors,” Hasen tells me. Among other things, he said, “that could come from a county refusing to certify.” Separately, Seligman notes that a GOP governor running for president — say, Ron DeSantis of Florida — could certify the wrong electors for, well, himself.
ECA reform would require governors to certify the correct slate of electors, create new avenues for legal challenges when governors violate that duty, and require Congress to count the court-sanctioned slate of electors even if a bad-acting state legislature appointed a sham slate of them.
On other fronts, ECA reform would clarify the vice president’s role in counting electors as ceremonial, and make it harder for Congress to invalidate legitimate electors, among other fixes.
The defeat of prominent election deniers has mitigated the threat in 2024 to some degree. But it isn’t remotely neutralized. And we should look beyond 2024. The fact that an election denier such as Lake fell a mere 17,000 votes short of becoming governor of Arizona — which would have positioned her well to steal a future election — is not cause for complacency. Both the impulse and the means remain alive.
That should be cause for action. Trump’s brazen effort to overturn U.S. democracy has created fleeting and unusual bipartisan urgency for reform. It would be the height of folly to let that slip away.