Is American democracy breaking? How would we know?
It’s December 2024. No one is entirely sure who will be sworn in as president of the United States in January.
In this hypothetical scenario, the Democrat appears to have won the national popular vote, and has narrow leads in several key battleground states. But the Republican candidate learned from former President Donald Trump’s attempts to overturn the 2020 election. This time that branch of the party is ready.
Newly installed election officials in Georgia, Pennsylvania, and Wisconsin have refused to certify some county votes due to what they claim is evidence of massive fraud in mail-in ballots. GOP-controlled legislatures in the three states have voted to support the fraud allegations. Slates of replacement Electoral College electors are waiting in the wings.
Local Democrats hotly dispute the fraud claims, as do the Democratic governors of Pennsylvania and Wisconsin. But neither the governors nor state courts have a say in the matter. Under a 2023 Supreme Court decision dealing with the “independent state legislature” theory, only state lawmakers have the power to set election rules.
Democrats have sued in federal courts, which are overwhelmed with election cases. But the conservative Supreme Court – at the top of the federal court pinnacle – has indicated it has little interest in interfering in states’ election decisions.
An update to the Electoral Count Act – the rickety 1887 law that governs Electoral College vote counting and the naming of the president-elect – could have clarified things and eliminated some loopholes. The update looked set to pass in late 2022, but it stalled after Republicans swept the House in a midterm red wave.
