"Congress Strengthened Election Safeguards, But Legal Loopholes Remain"
After Congress passed the Electoral Count Reform Act in response to former President Donald Trump's attempt to overturn the 2020 election results, leaders from both parties expressed hope that it would protect future elections. However, vulnerabilities still remain, particularly at the local level. Some of these weaknesses are already being tested by local officials, such as refusing to certify election results at the county level, according to Matthew Seligman, a fellow at Stanford's Constitutional Law Center and co-author of the 2024 book "How to Steal a Presidential Election."
Seligman explained to NY NEWS that due to changes in the Electoral Count Reform Act, efforts are now focusing on county boards of elections and potentially state-level boards, attempting to grant them authority to refuse certification of election results. In 2020, Trump sought to persuade Republican members of Congress and Vice President Mike Pence to reject Electoral College votes after Joe Biden won the election.
The Electoral Count Reform Act makes such an approach more difficult by specifying that the vice president’s role in counting votes is ceremonial and increasing the number of votes in Congress required to object to election results.
Changes to vote-counting and election certification procedures at the state and local level—purportedly intended to improve election accuracy and public confidence—have become the new battleground. This year, for example, saw last-minute rule changes from the Georgia State Election Board, as well as election commissioners in a key Nevada swing county voting against certifying results.
Georgia Republican Secretary of State Brad Raffensperger criticized these moves, stating that the "misguided attempts by the State Election Board will delay election results and undermine chain of custody safeguards."
Even if local officials tried to reverse election outcomes using the strategies discussed, they might not succeed. Statewide election administrators, governors, or courts could intervene to prevent such efforts, much as courts rejected many of the lawsuits Trump and his allies filed in 2020.
Still, election law experts warn that risks persist. "Means, motive, and opportunity are here to flip this, and that creates real danger," said Harvard Law professor Lawrence Lessig, who co-authored "How to Steal a Presidential Election" with Seligman.
Adav Noti, executive director of the nonpartisan Campaign Legal Center, also expressed concern: "To the extent that those seeking to overturn elections believe they've identified a vulnerability, it’s likely at the county level."
Here’s a look at what the Electoral Count Reform Act accomplished, along with three potential strategies for overturning election results despite the reforms.
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