Democrats are rightly euphoric about what is happening in the 2024 presidential campaign. Vice President Kamala Harris and Minnesota Gov. Tim Walz (D) have changed the vibe for the upcoming election and tapped into a hunger for the politics of joy.
That is all for the good. But it shouldn’t distract them — or the rest of us — from what is likely to unfold if Democrats prevail on Nov. 5.
If we needed a wake-up call, Donald Trump gave it to us in a rally in Atlanta on Aug. 3. The Republican nominee echoed a familiar refrain when he told his audience, “Now there’s two things we have to do. We have to vote, and we have to stop them (Democrats) from cheating.”
But he didn’t stop there.
“I don’t know if you’ve heard,” the former president said, “but the Georgia State Election Board is in a very positive way … they are on fire. They are doing a great job.”
Trump singled out three Republican members of the board, Janice Johnston, Janelle King and Rick Jeffares, whom he called “pit bulls fighting for honesty, transparency, and victory.”
Victory? How odd to put a partisan spotlight on three obscure election officials.
Odd, but revealing — Trump’s use of the word “victory” signals that the post-election work of the election board in Georgia and elsewhere is a key part of his campaign strategy.
The strategy is designed to sow chaos and confusion if he loses the popular vote. But out of that chaos and confusion, Trump hopes that state election officials will either declare him the winner or create a situation in which the House of Representatives, where Republicans are in control, gets to decide who should take the oath of office on Jan. 20, 2025.
Democrats and everyone who cares about the survival of American democracy need to prepare now for what will unfold after the votes have been counted in November. A lot of work must be done to ensure that the people’s will is reflected in how those votes are certified.
We saw a hopeful sign earlier this month when the American Bar Association’s Task Force For American Democracy sounded the alarm about threats to election integrity. It urged lawyers and state bar associations to “Follow local election board proceedings, understand any proposed rules changes and how they support or possibly don’t support election integrity…[and] learn how elections are administered…and then use that knowledge to defend the process and refute false information.”
In addition, Axios reports that the Democratic National Committee already has built “a robust voter-protection operation, investing tens of millions of dollars to protect against MAGA Republicans’ assault on our voting rights.” Other groups, such as the Election Reformers Network, are working to ensure “transparency across the election phases, the recounts, audits, and other procedures used to check results, and the principles that govern how courts judge election challenges.”
The rest of us must steel ourselves for the coming battle and lend our support, financial and otherwise, to those and other efforts.
Certification of elections is supposed to be a dull bureaucratic process, not an occasion for partisan warfare. As The Bulwark’s A.B. Stoddard observed last week, “Across the country, the November election results will have to be certified in more than 3,000 counties, and all state results must be final by the time electors meet in each state on December 17. Members of county election boards are not tasked with resolving election issues; certification is mandatory and ‘ministerial,’ not discretionary. Disputes over ballot issues are separate from the certification process.”
But certification isn’t likely to be dull this year. Democratic election lawyer Marc Elias has warned that “everything we are seeing about this election is that the other side is more organized, more ruthless, and more prepared. I think we are going to see mass refusals to certify the election” in November.
Most Americans don’t realize that the outcome of an election is not official until after the completion of a canvas of the votes and a certification of the results. In presidential elections, the certification process is critical in making clear which candidate should receive votes from a state’s representatives to the Electoral College.
The 2022 Electoral Count Reform Act requires that “each state certifies to Congress a single, conclusive slate of electors that have been selected according to state law prior to Election Day.” It says that states must do so “during a thirty-six-day window following the election.”
This brings us back to what Trump did last week in Atlanta.
He wanted to shine a light on Georgia’s election board members and send a signal to members of similar boards across the country in hopes they will certify slates of electors loyal to him, regardless of the outcome of the popular vote.
If they do so, they will turn the certification process into a confusing nightmare.
While Democrats were busy celebrating their new ticket and getting ready for their upcoming national convention, the Georgia State Election Board, as the Washington Post reported, “got to work this week approving a raft of new rules that critics say could void valid votes, place onerous burdens on overtaxed election workers and potentially delay the certification of results.”
“Among the most concerning among the new rules,” the Post said, “is a standard that allows county-level election boards to demand ‘reasonable inquiries’ if they have questions about the outcome of an election. The rule does not specify what a reasonable inquiry is, and it places no limits on the time frame of such a probe or what documents a board can demand.”
Georgia is not the only state where Republicans are preparing to use the certification process to ensure their favorite candidate prevails, one way or the other.
Last month, Rolling Stone reported that “in the swing states of Arizona, Georgia, Michigan, Nevada, North Carolina, and Pennsylvania … [there are] at least 70 pro-Trump election conspiracists currently working as county election officials who have questioned the validity of elections or delayed or refused to certify results.” Of those 70, 22 have already “refused or delayed certification” in recent past elections. Nationwide, Republicans have refused to certify results at least 25 times since 2020, in eight states — the most in Georgia.
“In retrospect,” Stoddard wrote in The Bulwark, “those efforts look like initial probes — like a bank robber casing the joint, figuring out where the guards stand and the cameras are while planning the real heist.”
Trump is counting on those probes to pay off and is grateful to his acolytes who are planning this fall’s heist. That is why he singled out the three Georgia State Election Board members at his rally and paid particular attention to Janice Johnston, who has taken on a more prominent role in pushing rule changes and certification challenges.
When she stood up to acknowledge his praise, Trump said, “Thank you! Thank you! Wow.”
Thank you, indeed.
To defend American democracy, voters must pay attention to that expression of gratitude and get ready for the trench warfare that the American Bar Association, Democratic National Committee and allied groups will need to wage if we are to prevent the election from being decided solely by people like Janice Johnson.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.