Trump Would Need New Tactics to Steal the 2024 Election
Hanging over the 2024 presidential rematch between Joe Biden and Donald Trump is the possibility of another contested result. Aside from a handful of liberal pundits who have fantasized about Congress refusing to certify a Trump victory on grounds that the 14th Amendment bans high federal office for past “insurrectionists,” the major reason for worry emanates from the horrible example set by Trump in 2020 and by his ever-more-adamant if still unsubstantiated claims that the race was “rigged.” There’s no reason to assume he’ll accept defeat in 2024, particularly now that he’s beginning to repeat some of his 2020 hogwash about voting by mail being inherently fraudulent and his even older fabrications about Democrats relying on illegal votes from noncitizens.
Even more fundamentally, the central message of Trump’s 2024 campaign is that he represents the overwhelming majority of Americans, who long for his brand of American greatness, against the self-perpetuating power of corrupt elites who illegally denied them a second Trump term. A graceful acceptance of defeat seems extremely unlikely. Rolling Stone is reporting that the Biden campaign is examining a “comically long” list of “nightmare scenarios” that might develop. To be forewarned is to be forearmed, to a considerable extent.
But while Trump remains entirely capable of trying to steal the presidency, his options have narrowed. Several of the tactics he used four years ago are now more or less off the table.
Most obviously, Trump will not have the office of the presidency or its powers at his disposal, and he’ll be trying to conquer, not retain, the White House. That’s a handicap that should not be underestimated. When he claimed a grossly premature victory on Election Night in 2020, it was from the East Room of the White House, which may have enhanced the authenticity of this banana-republic move. More importantly, throughout his effort to overturn his defeat, he had access to the resources of the U.S. Justice Department (although its operatives cooperated with him to widely varying extents). All that will be lost to him in 2024. Also beyond his reach is an option he considered but was reportedly talked out of taking in 2020: ordering the U.S. military to seize voting machines in the search for phantom voter fraud. So too is the more drastic step some feared of Trump invoking the Insurrection Act and deploying military units to suppress protests against his election thievery.
More generally, if some sort of institutional paralysis grips Congress or the U.S. government in implementing a 2024 election defeat for Trump, inertia will favor the incumbent. It’s easier to hold power than to seize it.
One particular byproduct of not being in power makes Trump’s planned maneuver in Congress on January 6 a nonstarter: The vice-president who will count electoral votes is Kamala Harris, not Mike Pence. So there will be no gavel-wielding president of the Senate “sending it back to the states” for an unconstitutional redo of election certification. Pence wouldn’t do Trump this favor; Harris won’t either, of course.
Other options available to Trump in 2020 have been removed or at least limited by the Electoral Count Reform Act of 2022, enacted by Congress with significant bipartisan support to address the events of January 6 and some of the confusion that preceded it. That new law makes it clear the vice-president who presides over the electoral vote count is acting simply as a clerk, not a judge. But more importantly, the ECRA provides clear direction on who has the power to certify electors at the state level, heading off the “fake electors” gambit the Trump campaign attempted via friendly legislators in 2020. It also provides for expedited federal judicial review of disputes over certification of electors so that they are resolved long before Congress confirms the results. And it strengthens the presumption that each state will only certify electors pledged to the candidate who wins its popular vote.
Overall, it appears the joint session of Congress to confirm the presidential results will be a less fruitful avenue for MAGA mischief in 2025, though we don’t know which party will control Congress at that time (Democrats controlled both chambers in 2021).
An even bigger legal change since 2020 has been the relatively more restrictive attitude of the states toward voting by mail now that the COVID-19 pandemic has more or less ended. The 2020 Trump campaign constantly claimed that the institution of temporary no-excuse absentee ballots or unsolicited distribution of mail ballots to all registered voters either constituted or encouraged voter fraud; their challenges typically failed as federal and state courts deferred to determinations by state and local election officials on public-safety needs. Now, according to the National Conference of State Legislatures, 15 states that temporarily relaxed excuse requirements for voting by mail have reinstated them. That means fewer mail ballots and fewer grounds for lawsuits alleging ballot fraud. Similarly, most states that sent unsolicited mail ballots to all registered voters in 2020 have stopped doing that; the only battleground-state exception is Nevada.
One mail-ballot issue that bears watching in 2024 is the practice in 17 states of allowing mail ballots postmarked by Election Day to be counted. While in 2020 the federal courts generally dismissed complaints against this procedure on grounds of COVID-related delays in mail-delivery service, there hasn’t been a definitive ruling on the argument that allowing late receipt of mail ballots represents an unconstitutional extension of Election Day. There are only, however, two battleground states (Nevada and North Carolina) that have a post–Election Day cutoff for mail ballots.
It’s worth noting that due to Democrats’ remarkably good performance in 2022, election deniers had less opportunity to monkey with election laws in the last two years. As New York’s Eric Levitz noted after the midterms:
Democrats … gained four new trifectas, won bitterly contested governors’ races (in Michigan, Pennsylvania, Wisconsin, and deep-red Kansas), fought off Republican supermajorities in the North Carolina House and the Badger State’s assembly, defeated every single election denier campaigning for secretary of State in an Electoral College battleground, and did not lose control of a single state legislative chamber. That last feat is especially noteworthy: In every midterm election since 1934, the president’s party has forfeited at least one statehouse to the opposition.
So what new election-coup tactics could Trump pursue in 2024? There is one terrifying possibility: the deployment of MAGA bravos to disrupt the casting or counting of Election Day votes in order to justify nondemocratic methods of determining the presidency. To put it another way, the more legislators and judges close off nefarious legal methods of subverting an adverse election result, the more Trump and his supporters may be tempted to resort to good old-fashioned ballot-box-stuffing violence. It would be immensely helpful to secure as many pledges against this lurch into open authoritarianism as possible among Republican elected officials and party leaders. And as an added safeguard, Joe Biden might want to win by a landslide.