Democracy dodged a bullet in this midterm election. Around the country, candidates who rejected the legitimate results of the 2020 election lost races for Congress, for state secretary of state, and most importantly for governor. Kari Lake, an election denier who lost to Democratic candidate Katie Hobbs in the race to be Arizona’s next governor, was the most prominent face among those failed candidates. An election-denying governor represents a cataclysmic threat to American democracy. We should breathe a sigh of relief knowing that she will not wield the power to wreak havoc in our election system.
Yet bullets remain to be dodged. Lake lost by only a fraction of a percentage point, and it would be foolish complacency to assume that Lake or someone else like her won’t win next time. If the nation dips into a real recession in the next few years, if gas prices are just a bit higher in the weeks before Election Day, the antidemocratic political movement may surge once again.
But we don’t have to conjure hypotheticals to see the risks that a politician might manipulate the results of the 2024 presidential election. Ron DeSantis, the ascendent governor of Florida and a likely Republican nominee in 2024, has carefully coddled election deniers while refusing to admit that President Joe Biden legitimately won the election in 2020. Under current law, DeSantis may have the chance to reverse the results of the 2024 election almost singlehandedly—and if he wins the nomination, that means he could steal the election for himself.
The only feasible shield against that threat is the Electoral Count Reform Act, a bipartisan bill that is pending in the Senate after the House passed similar legislation earlier this fall. Congress must pass this law to guard against a coup attempt on Jan. 6, 2025—one that could succeed where former President Donald Trump’s allies failed after the 2020 election. In an era of overheated rhetoric and intense partisanship, the fate of presidential democracy in America may depend on it.
The process of counting the votes in the Electoral College is currently governed by the Electoral Count Act of 1887, a federal statute passed after the calamitous presidential election of 1876. Three states in the Reconstruction South sent multiple slates of electors, and the two chambers of Congress—divided between Democrats and Republicans—deadlocked on which of the competing slates to count. An ad hoc Electoral Commission ultimately handed the presidency to Republican Rutherford B. Hayes. A decade later, Congress enacted the Electoral Count Act in an attempt to stave off another crisis by providing a legal framework for future Congresses to resolve disputes about counting electoral votes.
Until recently, disputed presidential elections found their final resolution in court, most famously in 2000 with the Supreme Court’s decision in Bush v. Gore. Vice President Al Gore conceded the election the next day in a nationally televised address, noting that although he disagreed with the court’s decision, he accepted the “finality” of the outcome. Gore even presided over Congress’ count of electoral votes on Jan. 6, 2001—including those arising from Florida’s disputed election results.
Everything changed on Jan. 6, 2021. Trump and his allies pushed past the constitutional norms that Gore and other Democrats and Republicans have upheld for centuries by attempting to reverse the results of the presidential election through manipulation of the legal process for counting electoral votes.
The attempted coup failed after the 2020 election, and the institutions bent without breaking completely. But we were lucky in 2021, and we may not be so lucky in the future.
The 2020 election plot failed for reasons that no longer hold true. Enough elected officials in enough places resisted the pressure and temptation to use their power to corrupt the process. Whatever else you may think of Mitch McConnell, then the Senate majority leader, or of former Vice President Mike Pence, of Arizona Gov. Doug Ducey or Georgia Gov. Brian Kemp, they played critical roles in preventing a constitutional crisis. Their actions made it exceptionally difficult for the legal coup to succeed, while those willing to step over the precipice into an extraconstitutional void were not in the right positions of power to push the plot to completion.
Things will be different in 2024. The House of Representatives will be controlled by a Republican majority filled with election deniers who have promised to use their power to overthrow the legitimate results of the election. And with them, DeSantis could steal the presidential election.
Here’s how.
The Electoral Count Act designates a single state official—the “executive” of the state, which in every state is the governor—with the authority to submit a certificate to Congress naming the state’s slate of electors. In every state in every election since its enactment in 1887, that certification has been a mere formality. But under the law’s arcane and never-tested procedures, that formality carries immense legal significance.
What if there is a dispute about the slate the governor certifies, and the House and Senate disagree about how to resolve it? Who breaks the deadlock? That’s the challenge Congress faced in the crisis of 1876. The law at the time had no framework for addressing that question, and the Electoral Count Act that Congress later passed provides a catastrophically flawed answer: If the chambers of Congress disagree about whether to count the governor’s slate, the governor’s slate counts.
This governor’s tiebreaker opens the door to a strategy I’ve called the Governor’s Gambit. Here’s how it could work: Suppose Biden wins the 2024 election against DeSantis, and Florida reprises its role as the decisive swing state. (Granted, Florida has grown much more Republican-leaning in recent years.) Now suppose DeSantis rejects the legitimate results of the vote in his state, citing unsupported conspiracy theories about fraud. Rather than submitting the legitimate Biden electors to Congress, DeSantis instead could submit a certificate naming the electors pledged to cast their ballots in the Electoral College for himself.
If no one else submits a competing slate of electors for Biden, then under current law, on Jan. 6, 2025, Congress must count DeSantis’ slate unless both chambers vote to reject it. A hyperpartisan House of Representatives, probably led by Speaker Kevin McCarthy, is unlikely to emerge as a profile in courage. Remember: If Congress’ approval of the competing slates is divided, DeSantis’ slate counts. And if someone else—a conscientious state election official, perhaps—submits a competing Biden slate? With Congress divided, the governor’s tiebreaker would mean that DeSantis again gets his way.
The Electoral Count Reform Act, introduced by a bipartisan group led by Sens. Susan Collins and Joe Manchin, clarifies and strengthens the law to fortify it against election subversion. By far the most important change is to make it almost impossible for a governor to steal a state’s electoral votes. The new law empowers federal courts to hear challenges to a governor’s certification of electors, so if a rogue governor submits a bogus slate the court can order her to issue the legitimate, lawful certification instead. And it binds Congress to treat that certification, which crucially must be consistent with the federal court order, as conclusive.
Taken together, these provisions ensure that courts rather than politicians, either in statehouses or in Congress, ultimately decide any dispute about which electors are lawful and legitimate.
The bill has the backing of Chuck Schumer, the Senate majority leader, as well as of McConnell. In an era of peaking partisanship, especially about election law, Congress appears poised to defy every expectation to pass the legislation.
But there is little time left for Congress to finalize the bill’s passage and send it to Biden’s desk. A lot can happen during a lame-duck congressional session—or a lot of nothing can happen. The outgoing Congress will face immense time pressure to address an endless list of priorities over the next few weeks. It is not hard to imagine an arcane election reform bill stalling out or getting lost. And when Republicans take control of the House in January, there is no chance the legislation will pass.
This is our last chance. Congress must act before it is too late.
