Ex-federal prosecutor details ways Dems have prepared for MAGA’s 'Stop the Steal 2.0'

05 November 2024

When Election Day 2024 arrived, many national and battleground state polls found Republican former President Donald Trump and Democratic Vice President Kamala Harris in a dead heat. Trump and Harris were tied in national polls released by Emerson College, the New York Post, NBC News and TIPP, although a NPR/PBS/Marist poll released on Monday, November 4 found Harris with a 4 percent lead nationally.

Meanwhile, a New York Times/Siena College poll found Trump and Harris tied in Pennsylvania — a key swing state that could decide the election. And a poll from The Hill/Emerson College released on November 4 showed Trump ahead by 1 percent in the Keystone State, where Harris held a Monday-night rally outside the Philadelphia Art Museum.

Democratic election lawyer and Democracy Docket publisher Marc Elias has been warning that if Harris wins, Trump and his MAGA allies will not accept defeat gracefully. And Elias has been busy planning for the possibility of Republicans refusing to accept the election results if Harris wins 270 or more electoral votes.

In an article published by the conservative website The Bulwark on Election Day, law professor and former federal prosecutor Kimberly Wehle examines Democratic efforts to fight "Stop the Steal 2.0" if Harris wins and Trump falsely claims the election was stolen from him.

"How wisely did we use those four years?" Wehle writes. "Anyone who follows the news won't be surprised to hear that Congress didn't go far enough to stop a steal. It made a few changes to the Electoral Count Act, which governs the process for certifying the Electoral College totals, but significant vulnerabilities remain."

Trump, Wehle warns, "has already been using election lies to lay the groundwork for a possible loss."

Wehle cites efforts to strengthen the Electoral Count Act as a plus but stresses that work still needs to be done.

"The Electoral Count Act now makes clear that only one 'certificate of ascertainment,' or slate, of electors is possible, and that it is 'conclusive' in Congress — so producing multiple slates in order to confuse things is a less appealing option for pro-Trump miscreants intent on stealing the 2024 election," Wehle explains. "Moreover, the multiple prosecutions of state-level participants in the 2020 fake electors scheme should be a deterrent for a redo of 2020. However, that doesn't close the book on this problem."

Wehle continues, "The GOP has made noise about reviving a constitutional theory they tried last round but didn't quite clinch in the Supreme Court: the independent state legislature theory, which claims that only state legislatures can ultimately administer elections under the Constitution. Courts can't, election administrators can't, and Congress can't. Under this theory, GOP-dominated state legislatures could separately meet and declare the winner of their states' Electoral College votes, overriding the popular vote and pre-existing state law. The Electoral Count Act now tries to avoid this by declaring that only the 'executive of each state,' i.e., the governor, can certify the Electoral College slates. But Trump could bring a constitutional challenge to this language, arguing that state legislatures have the final say."

Wehle also fears the possibility of MAGA Republicans resorting to physical violence.

"Donald Trump increasingly teases the possibility of violence — but hopefully, between the National Guard and the various federal law enforcement agencies, any rioters wouldn't get near the Capitol if a repeat of the mob attack on the building were attempted," Wehle argues. "Still, the existence of mobs may yet intimidate Republicans on the fence."

Kimberly Wehle's full article for The Bulwark is available at this link.

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