The Washington PostDemocracy Dies in Darkness

How Republicans seek to make it easier to challenge — and even overturn — election results

Georgia Secretary of State Brad Raffensperger (R) at a news conference in December at the state Capitol in Atlanta. (Kevin D. Liles for The Washington Post)

The foiling of former president Donald Trump’s plot to overturn the 2020 election is coming into sharper focus, and we laid out Wednesday just how close the scheme came to succeeding (or perhaps how far it came from succeeding). Essentially, the Justice Department and Vice President Mike Pence stood in the way, but even if they had fallen in line, there were significant obstacles.

But that leads to the next question: How much will those obstacles still be there next time?

Republicans across the country are proposing and passing legislation predicated on the idea of election security, even as we still have yet to see any proof of widespread or even significant fraud in 2020. But while much attention has been focused on new voting restrictions, there has been less analysis of the mechanisms by which it would become easier to overturn a result.

Let’s look at a few of them.

Sidelining unhelpful secretaries of state

In both Arizona and Georgia, lawmakers have responded to secretaries of state rebuking Trump’s voter-fraud claims by stripping them of power.

First came Georgia taking Secretary of State Brad Raffensperger (R) off the state elections board and giving the GOP-controlled state legislature the power to appoint its chairman and a majority of members. Then came Arizona temporarily removing Secretary of State Katie Hobbs’s (D) power to defend the state in election lawsuits and transferring it to the state attorney general, who is a Republican (Mark Brnovich).

In case it wasn’t clear how punitive and political this last one was, the state only did so through 2022, after which we’ll have new people in both roles (Hobbs and Brnovich are running for higher office).

In Arizona, this means the Democrat won’t take part in election lawsuits that might arise out of the 2022 election. In Georgia, this means a board run by Republican appointees will handle claims of voter fraud and irregularities, potentially legitimizing them after Raffensperger steadfastly declined to do so.

Georgia’s move also allows Republican appointees on the board to exert greater control over local county election officials, and we’ve already seen the beginnings of a possible takeover in Atlanta-based Fulton County, the site of some of the Trump team’s biggest voter-fraud conspiracy theories.

Installing Trumpy secretaries of state

CNN’s Daniel Dale offered a must-read download on all of this last month.

Essentially, while Trump has endorsed many election truthers — it’s very much a litmus-test issue for him, it seems — he has taken a particular interest in trying to install them as secretaries of state in key states that he lost narrowly.

Via Dale:

Trump’s Monday endorsement of state Rep. Mark Finchem for Arizona secretary of state is the latest in a series of announcements that has alarmed independent elections experts. Trump has now backed Republicans who supported his lies about the 2020 election for the job of top elections official in three crucial battlegrounds — Arizona, Michigan and Georgia — where the current elections chiefs opposed his efforts to reverse his 2020 defeat.

That trio of endorsees comprises a man who on Jan. 6 stated that the Capitol riot was “what happens when … Congress refuses to acknowledge rampant fraud”; a woman claimed it was a fact that votes were changed; and Rep. Jody Hice (R-Ga.), who baselessly suggested 1 in every 10 votes in Georgia was fraudulent.

These secretaries of state stood in Trump’s way in 2020, in large part because most of them in key states were Democrats — in Arizona, Michigan, Pennsylvania and Wisconsin — while the other big one was Raffensperger. If Trump has his way, not only will those positions be filled by Republicans come 2024, but by Republicans who pushed the “big lie” more than most others in their party.

Eliminating roadblocks to overturning results

While Trump has lined up behind Finchem in Arizona, another GOP candidate for that job has moved to make it easier to overturn elections — explicitly.

State Rep. Shawnna Bolick proposed a bill earlier this year that would have allowed the state legislature to overrule a secretary of state’s certification of the election results and select the state’s presidential electors, potentially ignoring the statewide popular vote. This would effectively allow the GOP-run state legislature to overturn a result with a simple majority vote, at any point before the presidential inauguration. The bill has not been passed yet.

A somewhat similar effort in Texas also ran into trouble. GOP lawmakers there proposed reducing the threshold for challenging an election result from proving fraud beyond a reasonable doubt to “by a preponderance of the evidence” — a much lower standard.

The proposal, which was part of the voting bill that Democrats so strenuously objected to, also stated that “if the number of votes illegally cast in the election is equal to or greater than the number of votes necessary to change the outcome of an election, the court may declare the outcome of the election void without attempting to determine how individual voters voted.”

In other words, one wouldn’t even need to prove the fraud beyond a reasonable doubt or that it changed the result, just that it affected enough votes to potentially do so. Even the conservative National Review cried foul, and the proposal was abandoned in the final product — but not before it passed in the state Senate.

Creating more opportunities for wrongdoing

Part of overturning an election result is finding something to base it upon. Trump struggled mightily to do this, lodging massive conspiracy theories that were routinely rejected in court, and then trying and failing to get the Justice Department to legitimize his claims, by scraping the bottom of the voter-fraud-claim barrel.

But a subtle way in which the GOP is moving to change things is by creating new rules and increasing penalties for certain conduct by election administrations — changes that could logically turn small actions into fodder for larger claims of fraud.

As The Washington Post reported on a report from the group Voting Rights Lab last month, “five [states have] enacted laws threatening administrators with felony-level crimes or other penalties for breaking rules.” Some of these, the report noted, involve “creating misdemeanor penalties for even inadvertent, technical noncompliance with election rules.”

One example is, again, in Arizona, where it’s now a felony to mail someone an unrequested mail ballot if they aren’t on the permanent absentee voting list.

While there was no proven, significant fraud in 2020, government officials aren’t perfect. Imagine a situation in which one of them inadvertently sends unrequested mail ballots to a few people who aren’t on that permanent absentee list. Suddenly, there will be a felony to point to. And then imagine from there that a state legislature has the ability to overturn an election result based upon such things, regardless of whether they had a proven impact on the result.

Republicans say such laws are needed to prevent election officials from overreaching, as they contend they did with the expansions of mail balloting in 2020 (due to the pandemic).

Whatever one thinks of increasing safeguards against unauthorized actions by elections officials, though, Trump showed just how much such things can be blown out of proportion — and how much his base can be made to believe such allegations of massive fraud, especially in the absence of fact-based pushback from members of Trump’s own party. While those lawmakers often declined to subscribe to Trump’s actual voter-fraud theories, they instead opted for watered-down versions, including that elections officials violated the law by expanding mail balloting.

Creating avenues by which small actions can suddenly become criminal creates a scenario in which such bad-faith allegations would suddenly have more heft behind them. And that’s very much of-a-piece when it comes to the consequences — however intentional — of these laws and proposals.