This November’s State Legislative Elections Are Key To Protecting the Presidential Election
Ahead of former President Donald Trump’s attempt to steal the presidential election through state legislatures in 2020, conventional wisdom evolved from underestimating the risk posed by state legislatures, to acknowledging the risk, to an effort to reduce the risk. Today, with Trump back on the ballot, conventional wisdom has swung right back where it started: underestimating the danger posed by state legislatures. As in 2020, that view is dangerously myopic but, with enough attention and resources, this significant risk could still be reduced.
There are some ways in which the path for subversion through state legislatures has been narrowed. In last year’s Moore v. Harper decision, the U.S. Supreme Court rejected the idea that state legislatures alone, without regard for state law, the state’s governor or state court, could determine the outcome of an election. Congress also enacted the Electoral Count Reform Act (ECRA) to require the “executive of each state” to appoint electors to the Electoral College by Dec. 11, based on the state laws in place before Election Day.
But neither change shuts the door to subversion by state legislatures. In Moore, the Court specifically said that if there is a dispute between branches of state government about a federal election, federal courts can decide which branch is right, including by siding with the legislature.
The decision points to the same unchanged fact that could well limit the scope of the ECRA: under the U.S. Constitution, states have a uniquely important role in federal elections — and picking presidential electors in particular. When it comes to a legislature involving itself in electing the president, neither the Supreme Court nor Congress can erase the argument that the legislature is acting within authority granted to it by the U.S. Constitution and state laws.
Just like in 2000 and 2020, it is safe to assume that some state legislatures will try to use their investigative, parliamentary and legislative powers to delay or challenge the elector certification process in 2024 and throw it into state or federal courts. Under the ECRA, a three-judge panel in federal court must hear any challenges to the state executive’s elector certification.
A state legislature hoping to subvert a legitimate result would also provide “grounds” for Congress to reject the state’s electors. The ECRA does not prevent Congress from rejecting electors; if they do, those electors are removed from the total number of possible electoral votes, lowering the threshold to win the presidency.
For all of these reasons, ensuring that those who would subvert a legitimate result do not hold power in key states before Dec. 11 (the deadline for state “executives” to certify electors) or after Jan. 6 (when Congress will either accept or reject them) will significantly reduce the risk of subversion of the presidential election. As we saw in Florida in 2000, when state and federal courts weigh in within the heightened atmosphere of a disputed presidential election, each fact matters.
Consider Pennsylvania, which has a decentralized system of counting votes and doesn’t standardize its election regulations from county to county. After the election, a state legislature that wanted to undermine the results could start investigations based on inconsistencies within or across counties. Right-wing lawmakers attempted to do this in 2020 by subpoenaing in-transit mail-in ballots before the election and election records afterward.
Today, the Pennsylvania Senate is controlled by a pro-Trump right-wing majority. The Pennsylvania House is not. However, in Pennsylvania new lawmakers elected in November are eligible to be sworn in on Dec. 1.
Just as in 2020, to focus exclusively on federal races, and ignore the very real threats in battleground states legislatures is shortsighted.
Based on the November election results, both chambers in December could be controlled by majorities looking to subvert the count or by majorities that will stay out of the process as they should. Pennsylvania Senate subpoenas and investigations before Dec. 1 could lead to joint legislative action to trigger a constitutional crisis between branches of government if a pro-Trump majority wins the House, or be stopped to allow the legitimate result to move forward if a pro-democracy majority wins the Senate. Who holds power in these chambers will be determined by this year’s legislative elections.
It is not just Pennsylvania.
In New Hampshire and Nevada, two other states that could potentially have a close presidential result, newly elected lawmakers are seated before the ECRA deadline to certify electors. And, as in Pennsylvania, in both states there are governing thresholds at stake in November.
Depending on the result, New Hampshire’s four electoral votes could be subject to a pro-Trump trifecta or a unified pro-democracy legislature. In Nevada, pro-democracy legislative majorities could gain enough votes to be able to pass legislation over a veto by the state’s Trump-aligned governor. The specific interplay of ECRA and state law in each state creates a powerful potential for these thresholds to protect or risk a legitimate allocation of electors.
This year’s elections are even relevant to the risk of subversion in a state like Wisconsin, which has near-supermajorities that support Trump in its legislature. While newly elected state lawmakers will be sworn in on Jan. 6, 2025, Wisconsin’s outgoing legislature can call itself into session at any point after the election. The majority and its leader have broad parliamentary power to pass resolutions, issue subpoenas or file briefs to build a legal and public case to call the governor’s certification into question.
However, the current majorities exist because of district lines that were recently deemed unconstitutional by the Wisconsin Supreme Court. If they lose based on the new, bipartisan maps, all of their actions after the election will appropriately be seen, by the press, the public and potentially even courts, as less legitimate and reflective of their state’s voters.
Similarly, in competitive legislative chambers in Arizona, legislative attempts to subvert the result between Election Day and the New Year by a durable radical right-wing majority that will continue to hold power beyond Jan. 6 will carry more weight with the public, Congress and the courts than actions by a lame duck radical right-wing majority that voters have rejected.
These are just a few of the clear risks we’ve uncovered in state legislatures in this first election after both Moore v. Harper and the ECRA. If Biden wins narrowly, an early “red mirage” will create the opening for anti-democratic legislative majorities to exploit these openings. It won’t be possible to win governing power for pro-democracy lawmakers in every potentially close state this November. But, it is possible in key presidential swing states — Arizona, Nevada, New Hampshire, Pennsylvania and Wisconsin. In these states, the risks will be profoundly impacted by the results of this November’s legislative elections.
At The States Project, our work to build power in state legislatures is driven by our understanding of how, in our federal constitutional system, state legislative power is a meaningful and underestimated share of all power in the country to improve lives, protect personal freedom and defend democracy. Fundamental to this is our understanding of the risk that right-wing-controlled state legislatures will subvert a free and fair presidential election. We saw our “tinfoil hat” theories become reality in the wake of the 2020 election, and today, we firmly believe that despite the Moore decision and ECRA, anti-democratic state legislative majorities still pose a clear and present danger.
Just as in 2020, to focus exclusively on federal races, and ignore the very real threats in battleground state legislatures is shortsighted. With even a fraction of the resources being spent to hold the presidency, it’s possible to significantly reduce the risks of a second, more organized attempt to steal it.
Lauren Popper Ellis is general counsel at The States Project (TSP). Her experience at TSP preparing for the 2020 presidential election, including researching the role of state legislatures in the 2000 Bush v. Gore election, has been a driving factor in TSP’s research and strategy to protect democracy through our work in state legislatures.