Expert reveals the 'one thing that keeps me awake at night' about GOP plan to dispute election

02 November 2024

In the event Republicans lose Tuesday's election, they have a number of tactics at the ready to dispute official results. And of the four possibilities Democrats view as most likely, one has a legal expert pondering the ramifications of how a GOP challenge could swing a nail-biter result in their favor.

Rolling Stone's Justin Glawe and Asawin Suebsaeng recently reported that Vice President Kamala Harris' campaign and her top supporters are already making preparations to account for any and all Republican challenges. Former President Donald Trump and the Republican National Committee have already made it clear they'll contest the results of any battleground states Harris wins if the margin is close enough, and he's already started litigating even though ballots have yet to be counted.

The four most likely ways Republicans will try to overturn election results is by GOP-aligned election officials refusing to certify results in pivotal counties; far-right activists disrupting the voting process on Election Day or poll-watchers interfering with the counting of ballots; Republican-controlled state legislatures attempting to submit slates of fake electors and GOP members of Congress interfering with the certification of the Electoral College on January 6, 2025.

Rex VanMiddlesworth, a former Harvard University constitutional law professor, has been working with the bipartisan group Keep Our Republic to consult with both state and local election officials to prepare for potential disruptions to the democratic process. He told Rolling Stone that there has been extensive preparation to head off any efforts to interrupt the scheduled December 17 meeting of presidential electors, when each respective state's electoral votes are awarded to the victorious candidate.

"The one good thing about having made it through 2021, officials are very concerned, they are wargaming, they are doing table-top exercises, and there is much coordination between law enforcement and election officials to be prepared to respond to anything that anybody can dream up," VanMiddlesworth said.

However, one major hurdle could happen on January 6 of next year, when Congress officially certifies the electoral vote count. House Speaker Mike Johnson (R-Louisiana) has already indicated that he and Trump have a "little secret" up their sleeve to deploy in January. He hasn't elaborated on what their "secret" is, other than that it involves Republicans' get-out-the-vote efforts.

VanMiddlesworth believes that one gambit the GOP is likely to play involves a coordinated plan with Republican governors of battleground states – like Brian Kemp of Georgia and Joe Lombardo of Nevada — not submitting "certificates of ascertainment" by the December 11 deadline. A certificate of ascertainment acknowledges the candidate that won a majority of the state's votes and lists the electors from a state, which are submitted by either party ahead of time. In the event a governor refuses to sign the certificate, a panel of three federal judges could sign it in their stead.

However, if signed certificates are not submitted by the deadline, members of Congress could contest the electoral votes of that specific state on the grounds that they weren't "regularly given" or "lawfully certified." Neither the Electoral Count Reform Act – which was signed into law in 2022 in response to the GOP's efforts to overturn the 2020 election — or the Electoral Count Act of 1887, which came before it, clearly defined what counts as "regularly given" or "lawfully certified." And that legal grey could cause headaches for Democrats on January 6.

"If there’s one thing that keeps me awake at night, it’s ‘regularly given,'" VanMiddlesworth said. He noted that if enough members' "regularly given" objections are sustained, it could result in a contingent election, in which the presidential election would then be decided by each state's delegation casting a single vote. Even if Democrats manage to take back the House of Representatives, it's possible that Republicans would still have a narrow edge in total state delegations, meaning Trump could be elected president by the House even if Harris wins the Electoral College.

"[S]ustained regularly given objections will result in a contingent election, which will be a disaster," VanMiddlesworth said.

Click here to read Rolling Stone's full article (subscription required).

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