What Would Stop the Steal 2.0 Look Like?

According to election forecasting models at the moment, Donald Trump is about as likely to win the presidential race as he is to lose it. If those models are right, that means Americans have roughly a 50 percent chance of living through another version of Trump’s post-election “Stop the Steal” campaign to overturn the results of the election.

We have every reason to believe that after suffering a legitimate defeat in November Trump would try to overturn the results because he has never been willing to admit he lost an election. He insisted that Ted Cruz did not beat him in the 2016 Iowa GOP caucuses. He insisted that he actually won the popular vote in the 2016 general election, despite Hillary Clinton receiving 3 million more votes nationwide. In 2020, the “Stop the Steal” campaign unofficially commenced in the wee hours of election night with the outcome still uncertain in several swing states—and culminated with a mob beating up cops in order to break into the Capitol building to try to stop the counting of Electoral College votes on January 6, 2021.

It’s unknowable exactly what Stop the Steal 2.0 would look like in the event of another Trump loss, but there would be some obvious and big differences between 2024 and 2020.

For starters, Trump is not the incumbent president. He will not be sitting in the Oval Office considering entreaties from his former national security adviser, Michael Flynn, to send in the military to seize voting machines and “rerun” the election, as happened in December 2020. He will not have pardon power, and he will not have any claim to presidential immunity. Trump’s vice president will not be the one presiding over the counting of Electoral College votes on January 6, 2025. That duty will fall to Vice President Kamala Harris. Presumably, Trump will not suggest that his opponent disregard federal law and claim constitutional authority to personally decide which electoral votes to count, as he urged Mike Pence to do in 2021.

Much has been done to strengthen the federal law governing the counting of Electoral College votes in Congress to prevent the chaos that occurred on January 6, 2021 (more on that below). But intense post-election chaos could occur much earlier at the precinct, county, and state level, where votes must be counted and the results certified at least six days before the Electoral College meets on December 17, 2024.

“We see a big push to withhold certification,” Thomas Joscelyn, a senior fellow at Just Security and a lead author of the House of Representatives January 6 committee’s report, told The Dispatch. “Basically, if the vote doesn’t go Trump’s way, they want to be in a power position to withhold certification.” “They” refers to MAGA loyalists who have heeded Steve Bannon’s call in 2021 to adopt a precinct strategy and be in a position to try to block certification of the vote at the local and state level. “I think all those [efforts] are probably unlikely to succeed and will fail in courts of law,” Joscelyn said. “But there are all sorts of things they could do. It’s sort of like hitting a moving target. There’s too many variables.” He added: “That’s kind of what they did in the lead up to January 6: We’ll try this. Well, that doesn’t work, then we’ll try this. … Keep moving from one sort of anti-democratic measure to another.”

To zoom in on one swing state, consider the ongoing drama over new election rules issued in a 3-2 vote by Trump loyalists on the State Election Board in Georgia. One rule requires local election officials called superintendents to conduct a “reasonable inquiry” before certifying an election, and another rule requires county election officials to have access to “all election related documentation created during the conduct of elections prior to certification of results.” On their face, the rules don’t sound particularly problematic—who is against “reasonable” inquiries and transparency? 

“There are ways in which you could sort of say they’re sort of comporting with existing rules and nothing interesting or remarkable has happened,” Derek T. Muller, a Notre Dame Law School professor who focuses on election law, told The Dispatch. He gave the example of a superintendent in charge of reporting vote totals for 18 precincts to inquire why he’s received results for only 17 precincts. “The open question is, well, is this somehow going to be used as a pretext for election officials to ferret around and do other things to try to substantively change vote totals when they don’t have authority to do so? That remains to be seen,” Muller said. 

The big concern held by those objecting to the rules change is that they will be used to delay or prevent certification. But the rules don’t “change the deadlines [for certification]. State law fixes the deadlines,” Muller said. “They don’t have any opportunity to move that deadline. But I think the question is whether some of this language is going to invite more mischief.”

One official in the Georgia secretary of state’s office is definitely expecting mischief in the event of a Trump loss. “We have Republican stronghold counties who have majority Republican boards that could just performatively say we’re not going to certify this,” an official in the secretary of state’s office told The Dispatch. “I think that’s very likely to happen.”

What would happen in the event that a county refused to certify a vote total? Muller said a lawsuit seeking a writ of mandamus would be filed telling election officials in effect to do their job. “The court would order them to do it, and then they do it,” he said. “If somebody refuses to comply with a court order, you can just appoint somebody else to do it. So you might delay things very briefly.” 

As a recent example of officials refusing to certify vote totals, Muller pointed to election officials in a county in New Mexico who did so in 2022 due to baseless concerns about Dominion voting machines. The secretary of state filed a lawsuit on a Tuesday; the New Mexico Supreme Court ruled on a Wednesday; and the county certified results on a Friday. “We honestly don’t have a choice,” one of the county officials said at the time when she changed her vote. She cited “the potential for fines and removal from office if the panel ignored an order from the state Supreme Court to certify the primary results,” according to CNN.

The official in the Georgia secretary of state’s office told The Dispatch that “even if you had a Jody Hice type of person running this office, if they don’t certify, they immediately get sued, and then the judge forces that person to certify the election. So all of this is kind of performative.” Hice is a Trump loyalist who lost a primary against Secretary of State Brad Raffensperger in the 2022 GOP primary. “Why are they changing election rules in the eleventh hour?” the official asked. “Who benefits from a chaotic election?”

It’s possible the rules won’t even be in effect on Election Day. Georgia Democrats filed a lawsuit this week to undo the rules and filed a letter alleging an ethics violation with the governor’s office regarding the State Election Board’s actions. Kemp’s office said it is seeking advice from the state attorney general.

“We’ve had people refuse to certify election results before. We’ve gotten through it, through court orders and the like,” said Muller. “It’s not like a magic ‘one weird trick to steal an election.’”

“It can sow political discord and public discord, there’s no question about that. That’s a bad thing,” he added. “But from the legal side, while it might briefly gum up the works, I think at the end of the day, it would not succeed.”

Once the results are certified, the Electoral College meets in the 50 states and the District of Columbia on December 17, 2024. (The state executive issues a certificate of ascertainment of electors by December 11, and electoral votes are submitted to the president of the Senate no later than December 25.) A joint session of Congress will convene on January 6, 2025, with Vice President Kamala Harris presiding as president of the Senate. 

In 2022, Congress passed the Electoral Count Reform Act (ECRA) in an attempt to avoid the chaos of January 6, 2021. The law amended the Electoral Count Act of 1887 to explicitly affirm what should have been already clear from the Constitution about the vice president’s role in counting electoral votes: The job is “solely ministerial,” and the “President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.”

The ECRA also provided instructions about what to do in the event Congress is presented with dueling slates of electors. In 2020, Trump tried and failed to get the majority of any state legislature to try to send “alternate electors,” and dozens of those who presented themselves as “alternate electors” have faced criminal charges alleging fraud. The ECRA instructs Congress to count the electoral votes transmitted by the “executive” of each state, meaning the governor or another executive official specified by state law on Election Day. Of the seven battleground states that will decide the outcome of the presidential election, five have Democratic governors (Wisconsin, Pennsylvania, Michigan, Arizona, and North Carolina). Two states have Republican governors: Georgia, where Gov. Brian Kemp rejected Trump’s efforts to overturn the election in 2020, and Nevada, where Gov. Joe Lombardo was first elected in 2022.*

The ECRA also spells out a process for the courts to adjudicate any disputes over the executive’s ascertainment of electors, with expedited review by the Supreme Court. If there’s a constitutional issue, such as a due process or equal protection claim, that would be settled under this process. The law does not displace existing federal or state election laws for challenges regarding the legitimacy of votes. If there’s a dispute prior to certification about “whether to count 23 absentee ballots that came in after Election Day, that’s just going to go back to your state court or federal court for existing mechanisms,” Muller said.

If there are objections on January 6, 2025, to the counting of electoral votes, the ECRA states those objections may be heard only if one-fifth of both chambers of Congress support the objection, and the objections may be sustained only by a majority vote in both chambers of Congress.

What happens if a state legislature purports to send an alternate slate of electors to Congress? “The state legislature can do whatever it wants, and then Congress is going to decide, are we going to adhere to what we wrote in the ECRA, or are we going to ignore it?” Muller said. The text of the ECRA states that electors must be appointed in “accordance with the laws of the State enacted prior to election day,” and Muller noted: “Right now, no legislature has authorized itself to be the one who identifies who won the election. No one has authorized the legislature to choose electors after Election Day.” 

If Kamala Harris were to win the Electoral College, Democrats would be very likely to control the House of Representatives on January 6, 2025. When Republicans won their narrow House majority in 2022, they outran Democrats by about 3 percentage points nationwide. To win the Electoral College in 2024, Harris would likely need to win the popular vote by at least a couple of points, which would likely coincide with a Democratic takeover of the House. Republicans would still have a good chance of holding a narrow majority in the Senate. On January 6, 2021, a solid majority of Senate Republicans and a sizable minority of House Republicans joined congressional Democrats to reject efforts to reject the counting of electoral votes for Joe Biden. So even in the unlikely event that Harris won and Republicans controlled both the Senate and the House come January 2025, history indicates there would not be a congressional majority in favor of rejecting legitimate Electoral College votes for Harris.

While this article has focused on disputes in the event of a Trump loss given the unprecedented nature of his behavior in 2020, the possibility that Democrats would take extraordinary measures to challenge a Trump victory can’t be ruled out either. Democratic Rep. Jamie Raskin said at an event in February: “It’s going to be up to us on January 6, 2025, to tell the rampaging Trump mob that he’s disqualified” under Section 3 of the 14th Amendment. 

Raskin added: “Then we need bodyguards for everybody and civil war conditions all because” Supreme Court justices “simply do not want to do their job and interpret what the great 14th Amendment means.” Raskin’s comments came after the Supreme Court said it was up to Congress to determine if a president could be disqualified under the 14th Amendment for having “engaged in insurrection or rebellion” as an “officer of the United States.” Raskin told Roll Call in March that the theory of disqualifying Trump after he won was “dealing in a sequence of hypotheticals,” and several Democrats told Roll Call they rejected the theory Congress could deny a legitimate Trump victory on January 6, 2025. 

Hypothetical or not, the potential for violence that could occur between Election Day 2024 and Inauguration Day in January 2025—regardless of the outcome—remains one of the biggest and most dangerous unknowns hanging over the country. Americans may hope the better angels of our nature prevail this time around, but the riots of January 6, 2021, and the summer of 2020—plus the Trump assassination attempt of July 2024—suggest we should prepare for anything.

Correction, September 3: This piece originally used the wrong first name for Nevada Gov. Joe Lombardo.