Donald Trump and the Republican Party have laid the groundwork for assuming the U.S. presidency regardless of the result of the 2024 election, and if they choose to pursue this plan, most of the conditions they would need to execute it are already in place.
If this sounds outrageous, please read on, keeping in mind that the presidential election is determined by the slates of electors that states send Congress for certification.
Given this oddity in our electoral process, here are some things that a politician would need in order to have a chance of subverting the U.S. presidential election:
- Control over half of state legislatures (something that can be achieved through severely partisan gerrymandering and self-serving redistricting)
- At least some swing-state legislatures radical enough to either a.) suppress voters sufficiently to achieve their preferred result; b.) replace the Board of Election if it doesn’t arrange for the preferred candidate to win; or c.) send a non-elected slate of electors for certification regardless of the election’s actual result.
- Control of the House of Representatives, and preferably both houses of Congress.
- The ability to purge moderates who might not go along with the ending of democracy.
- Total loyalty from one’s political party and a cult-like allegiance from voters.
- A compliant, complacent or cooperative Supreme Court.
- Widespread skepticism among voters about the idea that elections are run fairly (a skepticism that can be fed by the constant challenging of legitimate results by the loser of an election).
And here are some additional factors that could further assist a politician bent on stealing an election in this country:
- Sufficient voter suppression to make the above plan unnecessary, or at least enough to make results close enough to sow even more doubt about legitimacy of results.
- Cynicism and confusion so deep that huge numbers of people don’t believe in facts of any kind.
- Roving white nationalist militias that tout voter suppression and spread skepticism about the legitimacy of elections.
- A sizable minority of the population that believes deep down that Black people and immigrants are not “real” Americans, and that their votes should not determine the results of elections.
Now, let’s look back at these conditions for how a politician might subvert an election. For Trump and the GOP, most of these boxes are already checked, and most of the others are well underway.
The endless repetition of the Big Lie, the sham audit in Arizona, the new voter suppression laws in 19 states, the demonization of mass media through the “fake news” mantra, the packing of the Supreme Court with Federalist Society-approved right-wing justices, the purging of Rep. Liz Cheney, the encouragement of the Proud Boys… these are sometimes covered as random and disparate strands, rather than part of a plan that makes total sense once you know what the goal is.
Assuming Trump runs for president, he will likely make countless accusations of fraud — echoed by his supporters — between Election Day and December 16, 2024, the date electors in each state meet to formally vote for president and vice president.
On that day legislatures in at least some swing states that Democrats have won could use laws passed in the wake of the 2020 elections to invalidate the results and select a slate of electors for Trump. For example, Senate Bill 202 (the Georgia law famous for prohibiting distribution of water to voters waiting in lines) less famously but more insidiously allows state officials to take over local election boards. In other words, the radical right legislature that passed the law in the first place can easily and legally manipulate the result.
On January 6, 2025, when Congress opens the envelopes, there would either be enough electoral votes for Trump, or enough states with competing slates of electors or other forms of chaos to declare that neither candidate has reached the requisite 270 electoral votes. At that point, the election would be determined by one vote per state. With Republicans having a majority of congressional representatives in a majority of states, and with moderates purged from the party, it’s hard to imagine the states doing anything but selecting Trump. This scenario is plausible even if voter suppression is insufficient to award the popular vote in swing states to Trump. It doesn’t matter how much he loses by if the state legislatures have the power to determine the electoral slate sent to Congress.
What can be done to guard against the possibility that the 2024 election could unfold in this way?
Electoral resistance: The Democrats could mobilize to hold on to a majority of the House of Representatives.
Legislative resistance: The Senate could pass federal voting legislation that would override the worst provisions in the wave of state laws recently passed. In particular, the federal law would have to reverse the takeover provisions that allow the state legislatures to replace or overrule local election boards. This could happen either by suspending the filibuster rule and getting all 50 Democratic Senate votes, or by getting 10 or more Republican senators to support it.
Judicial resistance: President Joe Biden could appoint four or more new Supreme Court justices to block this from happening during the inevitable litigation, and the Senate could confirm them.
State-level resistance: Courageous secretaries of state in swing states could invoke Section 3 of the 14th Amendment, which prohibits anyone who has taken an oath to defend the Constitution from holding elected office if they have participated in insurrection or rebellion against the U.S. These election officials could — and arguably would be obliged to — refuse to place Trump on the ballot.
These steps might seem extreme and even provocative, but without at least one of them, the U.S. is at serious risk of a democracy-shaking attack on its free and fair elections. And at the moment, all of them seem distant and unlikely.
This is a five-alarm fire, yet right now no elected Democrat is consistently sounding the alarm — not Senate Majority Leader Chuck Schumer, not House Speaker Nancy Pelosi, not Sen. Bernie Sanders, not Rep. Alexandria Ocasio-Cortez and definitely not Sen. Joe Manchin. This is DEFCON for democracy, yet the president barely mentions it.
To be sure that democracy will survive in the United States, Democrats must take seriously the possibility of this nightmare scenario and take bold action to prevent it from happening.