The next presidential election could trigger a constitutional crisis.

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Sometimes, like a Shakespeare antihero confiding in the audience, Donald Trump blurts out his true motives. This week he did it again. Lawmakers who want to tweak the Electoral Count Act, according to Trump, are essentially admitting that “Mike Pence did have the right to change the outcome. And they now want to take that right away. Unfortunately, he didn’t exercise that power. He could have overturned the election!”

All this came after Trump told a Texas rally that prosecutors investigating him are “racist” and urged supporters to stage massive, menacing protests in the cities where he faces legal action.

In a Q&A for Sunday’s Washington Post, Jennifer Rubin asked me for the worst-case scenario

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for the 2024 election. The truth is that as bad as 2020 was, it could be worse next time around. Trump’s coup try was clownish, incompetent, chaotic. (Remember Four Seasons Total Landscaping? Or hair dye mixed with flop sweat pouring down Rudy Giuliani’s face?) Since then, the professionals have taken over. State legislatures dominated by proponents of the Big Lie have laid the legal foundation for a genuine constitutional crisis in 2024.

How could it happen?

Election deniers are running for secretary of state or attorney general in many states. The central argument for their candidacy is that they would not have certified the 2020 election results, as required by law, after voters chose Joe Biden. If elected, they would not hesitate to try to block certification in 2024. Some are seeking jobs as elections administrators, where they could use their authority to tilt turnout. They could, for example, selectively reject provisional ballots from communities of color.

Separately, lawmakers are scheming for the power to nullify elections. Some believe (bizarrely) that the Constitution itself gives them the power to reject election results. In seven states, legislators have proposed bills to formally give themselves that authority. Fortunately none has passed, and, under any reasonable reading of the Constitution, those bills would be unconstitutional. But this disregard for constitutional norms is alarming and dangerous.

The smallest technical dispute could trigger a nullification attempt. In 2020, some Wisconsin legislators argued that the results were invalid because elections officials offered mail-in ballots to residents of nursing homes without first visiting the facilities, as required by statute. (Of course, the pandemic made such visits impossible.) A similar technical legal violation could serve as a pretext for a state official to reject future results.

And new laws in Arkansas and Georgia recently gave state authorities the power to remove and temporarily replace local election officials. They could, for example, remove election officials in Fulton County, Georgia, on a pretext, install their own candidate, and throw out ballots in the Atlanta area.

Would the Supreme Court step in to protect the sanctity of our elections? The Court declared most recently in 2020 that once a state legislature has decided that voters choose the president, it cannot step in and undo their votes. That’s encouraging. But in the last decade, the justices have refused to strike down even a single restrictive voting law. I would prefer not to test their commitment to voting rights in a crisis.

Fixing the Electoral Count Act — a good idea — would not stop these machinations in the states. Far more important would be clear national standards on things such as vote by mail and when ballots must be counted. The Freedom to Vote: John Lewis Act is the most important step to stop election subversion of all kinds.

For the first time, a national leader argues that our democracy is fake. Over a year after the election, 70 percent of Republicans think Trump really won. That’s new and scary. But something else — something more encouraging — is also happening. A democracy movement, galvanized by Trump’s lies, mobilized around the campaign for federal legislation. It’s the biggest push for voting rights in half a century — a coalition of breadth, diversity, and depth. Perhaps the story of the next two years will be the rising righteous anger of this movement fighting for democracy.

Democracy

The Importance of Diversity on the Supreme Court

President Biden has promised to pick a Black woman to fill Justice Stephen Breyer’s seat. Ample evidence demonstrates why building a diverse bench is a crucial value in choosing judges. Having ones that reflect a broad range of life experiences and personal and professional backgrounds promotes a richer jurisprudence. Diversity also helps instill trust in the justice system among underrepresented communities. “A bench that fails to reflect the public it serves is ill-equipped to serve that public,” write Alicia Bannon and Douglas Keith. Read more

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Challenging Unfair Voting Maps in Court — Again

Just a few weeks ago, the Ohio Supreme Court ruled in favor of Ohio community groups and voters represented by the Brennan Center, striking down gerrymandered legislative maps. But the replacement maps still contain partisan gerrymandering that violates the Ohio Constitution, and they especially disadvantage Black and Muslim communities. So the plaintiffs have returned to court to keep fighting for fair maps. Read more

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Calling Out Appalling Voter Suppression Laws

Last year, 19 states enacted 34 laws restricting access to voting, setting a tragic record for modern voter suppression. Will Wilder and Stuart Baum detail five of the worst ones and point to where this troubling trend will likely continue in 2022. “Voter suppression can often be characterized as death by a thousand cuts — seemingly minor rules about issues like voter ID, mail voting, resource allocation at polling places, and voter roll maintenance can add up to create significant burdens,” they write. Read more

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Congress Must Protect Our Election Infrastructure

Election administration in the United States is under threat from abroad and within, facing down dangers ranging from foreign election interference to sham audits carried out by proponents of the Big Lie. We know the best practices and critical safeguards for our elections, but local jurisdictions need funding. “Our election infrastructure is strong, but it is facing a growing anti-democracy threat from within. Congress can lead the way on protecting democracy from that threat by investing in true election integrity measures,” Gowri Ramachandran writes. Read more

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Constitution

Emergency Powers Need Reform

Even after the systemic stress testing of the Trump administration, there is still a dire need to reform the president’s overbroad emergency powers. Revisiting an analysis from 2020, Elizabeth Goitein sets out the threat at hand: “The relevant question is not whether the incumbent president is likely to abuse these powers, but whether Congress will take advantage of the current window of opportunity to reform them—before they fall into the wrong hands,” she writes. JUST SECURITY

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Coming Up

VIRTUAL EVENT: The Party of Trump

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Tuesday, February 8, 6–7 p.m. ET

The Republican Party’s transformation under Donald Trump may have seemed sudden, but it was decades in the making. From New York Times political reporter Jeremy Peters, Insurgency: How Republicans Lost Their Party and Got Everything They Ever Wanted

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, examines the fracturing of the GOP and how party leaders misunderstood their own voters. Join us for a live conversation between Peters and MSNBC political contributor Yamiche Alcindor as they discuss how ideology and aggression came to take hold of the Republican Party and changed the course of American politics. RSVP today

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Produced in partnership with New York University’s John Brademas Center

Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Rachel Levinson-Waldman on “questionable” background checks by U.S. Capitol Police // POLITICO

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Michael Li on partisan gerrymandering in New Jersey // NJ.COM

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Sean Morales-Doyle on Florida Gov. Ron DeSantis’s proposed election police force // VICE

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Lawrence Norden on threats to election officials // CNN

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Gowri Ramachandran on polling place closures in Georgia // CENTER FOR PUBLIC INTEGRITY

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Ian Vandewalker on insider threats to elections // STATELINE

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Wendy Weiser on the future of the Freedom to Vote: John Lewis Act // NEW YORKER

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