In the aftermath of the 2020 presidential election, a relatively small number of mostly Republican officials protected the United States from a major political crisis.

In Michigan, for example, State Election Board member Aaron Van Langevelde cast the pivotal vote to certify the results of the election, despite pressure to flout state law and delay certification.¹ In Georgia, Secretary of State Brad Raffensperger refused to tamper with the results of the election, despite a lengthy call from President Donald Trump and his advisers in which Raffensperger was asked to “find 11,780 votes.”² All told, at least 31 Republican elected officials from battleground states spoke to then-President Trump soon after the election—and though they tried to placate him, most were unwilling to go along with his schemes to change the results of the election.³

America may not be so lucky next time around.

Van Langevelde was not re-nominated for his board position, and Raffensperger was censured by the Georgia Republican Party⁴ and removed from his position as chair of Georgia’s State Election Board. Across the country, many Trump-aligned officeholders increasingly support and promote the idea that the presidential election was stolen; in fact, it has become “a new kind of litmus test.”⁵ It has been reported that more than 230 candidates running for Congress have embraced President Trump’s false claim that the election was stolen.⁶ Perhaps even worse, many of the candidates who are running to serve as top election officials in battleground states also support that false claim.

In other words, the people who stopped an overthrow of the last presidential election may not be there to defend U.S. democracy in 2024 and beyond.

This may not be a problem if one candidate wins the next election in a landslide or even by a decisive margin. But the recent trend has been the opposite: Americans are relatively evenly divided between the two major political parties, which means that electoral manipulation can succeed even if it only shifts a tiny percentage of the votes. In the 2020 election, then-presidential candidate Joe Biden’s margin of victory was less than 1 percent in three states: Arizona, Georgia, and Wisconsin.⁷ In that environment, even a relatively limited, poorly executed attempt to manipulate the election could succeed in changing the outcome.

The top threats to American elections and how to address them

This issue brief aims to clarify how future elections are threatened and how public policy can address those threats. But it is important to clarify at the outset: There is no silver bullet. A large segment of the American public has decided they do not trust the electoral system—at least not when their favored candidate loses. Changing those hearts and minds is a long-term challenge that is going to require thoughtful, long-term solutions.

In the meantime, however, policymakers ignore the short-term problem at their peril. Election officials might refuse to certify the next election. Bad actors might try to tamper with the results of the election—or prevent their opposition from voting—under the pretense of preventing fraud. And, even when the election is over and done, members of Congress might refuse to respect the Electoral College results.

This issue brief explores each of these threats below,⁸ along with the ways that public policy can address them. Legislation alone is not going to restore faith in democracy, but it can strengthen the guardrails that—at least in the short run—keep democracy intact.

Threat No. 1: Partisan officials might refuse to certify the election

While the State Board of Elections in Michigan came within one vote of not certifying the presidential election, what happened at the county level in Michigan was equally alarming. The Wayne County Board of Canvassers, which is responsible for certifying the votes for Michigan’s most populous county—home to Detroit—nearly failed to certify the votes for the county. Two of the four board members initially voted against certifying the results, leading to “an extremely rare 2-2 tie.”⁹ Within hours, after a heated public outcry, the board unanimously voted to certify the results.¹⁰ But the day after casting these votes, both board members who initially opposed certification asked to “rescind” their votes in favor—a request that, fortunately, had no basis in state law.¹¹

If this kind of obstruction catches on, it opens up a vast vulnerability in U.S. elections. Across the country, it is typical for counties to review and certify election results before passing them on to a state entity for final certification. This process is usually mechanical and straightforward. But with more than 3,000 counties in the United States,¹² if even 1 percent of county election officials decide that it is a legitimate tactic to refuse to certify election results—based on unproven allegations of fraud, or for any other reason—that could bring the whole electoral system to a standstill. Americans could only hope that courts across the country would intervene swiftly, consistently, and on the side of democracy.

Unfortunately, it seems not just possible but probable that certification will become a problem in the next close presidential election—perhaps even in the next close congressional elections. According to recent polling, three-quarters of Republican voters—and a sizeable 26 percent of independents—believe that Trump was the legitimate winner of the last election.¹³ And it appears that in places such as Michigan, long-serving election officials are already being replaced with newcomers who are more supportive of election conspiracy theories.¹⁴

The only way to fully address this problem is to make changes to the certification process. Although Congress has created some rules for the certification of U.S. House of Representatives and Senate elections, it has largely refrained from making rules for the certification of presidential elections. This partly stems from the U.S. Constitution, which gives Congress very broad authority to set rules for congressional elections, but which assumes that state legislatures will determine how members of the Electoral College are selected.¹⁵

Congress nonetheless regularly establishes rules for voting—rules that apply across federal elections. It should do the same for certification. Each state should be required to certify its elections on the same schedule, rather than following 50 different schedules as they currently do.¹⁶ The schedule should apply equally to all federal offices. The ability to certify the election should rest solely with one state authority; local officials can continue to help verify election results, but they should be prohibited from holding up the final tally. And all decisions about certification should be based only on the actual tally of votes—not on unsupported allegations of fraud. Congress should consider going even further and putting certification responsibilities in the hands of a nonpartisan panel of judges, an idea suggested by attorney Marc Elias.¹⁷ There’s no reason why politically motivated elected officials should be able to pass judgment on their own elections—or the elections of their friends and fellow partisans. Election administration should be a professional, fair, and politically neutral process. Although it is difficult in the current climate to create any entity that is truly above partisan politics, a group of professionals is much preferable to a single governor or secretary of state.

Although there does not appear to be any pending legislation that goes as far as the recommendations outlined here, there is one bill that would take an important step in this direction. The John Lewis Voting Rights Advancement Act, which was recently filibustered in the Senate but is still the subject of ongoing negotiations,¹⁸ would make it explicitly unlawful for any official to “willfully fail or refuse to certify” election results in favor of the candidate that gets the most votes.¹⁹ At a minimum, this would make it easier to resolve certification disputes quickly and favorably in the courts.

Threat No. 2: A new cohort of Trumpian election workers might tamper with the results or prevent people from voting

Unfortunately, election conspiracies pose a threat not only during certification, but at every level of election administration. Examples include:

• Local election administrators. In Mesa County, Colorado, the elected county clerk, a reputed believer in election conspiracies, is reportedly being investigated by the FBI for allegedly allowing an unauthorized person to copy voting machine software, which was then posted online—a major security breach.²⁰ In a small town in Michigan, a clerk who reportedly spread election conspiracies online refused to conduct routine testing on a voting machine.²¹ When she was stripped of her responsibilities, a key component of the machine went missing.²² The clerk is now under state investigation, though she said in a statement that she followed “all laws completely.”²³
• Poll workers. In Wisconsin, a surge of conspiracy-minded Republicans are volunteering to serve as poll workers, energized by their belief that the 2020 election was stolen.²⁴ They are part of a nationwide movement, inspired at least in part by Steve Bannon, to encourage like-minded people to become precinct officers, who are often charged with selecting poll workers. In places such as Wisconsin, which has no precinct officers, those volunteering can become poll workers directly—and many are doing so.²⁵ This is taking place at the same time that record numbers of long-serving poll workers and other election officials are leaving their posts,²⁶ in part due to a drastic rise in threats and harassment.²⁷
• Poll watchers. In September 2021, Texas passed a law that empowers partisan poll watchers,²⁸ requiring them to have “free movement” in polling places and making it illegal to obstruct their view.²⁹ While this does little to improve transparency, it allows people who should simply be observing to potentially disrupt the voting process and intimidate voters. The next election could see a surge of poll watchers—including conspiracy theorists intent on rooting out nonexistent fraud—and election officials in states such as Texas may find it difficult to respond to incidents of intimidation or to maintain order in polling places.

When an election is managed by conspiracy theorists, staffed by conspiracy theorists, and monitored by conspiracy theorists, a lot can go wrong. Each of these roles has some legal authority that can be abused to discourage and prevent citizens from voting. And of course, individuals in each of these roles can illegally undermine the voting process or the process of counting ballots. It is hard to anticipate, let alone prevent, all of the kinds of malfeasance that may occur when people who do not believe in the legitimacy of an election are the ones conducting it.

Nonetheless, there are a number of ways policymakers can mitigate the risks. And many of them are featured in the Freedom to Vote Act (FTVA),³⁰ which has been filibustered in the Senate, but which hopefully will soon receive another vote. These include:³¹

• Limits on poll watchers. One provision in the FTVA requires anyone observing the polls to maintain a distance of at least eight feet from any voter trying to cast a ballot or any poll worker processing a ballot. It would also prohibit poll observers from challenging any voter’s eligibility to vote except when it is a good-faith challenge based on direct personal knowledge of the observer—and a challenge that they could not have made before Election Day.
• Broad prohibition on undue burdens on the right to vote. The FTVA also contains a broad provision that allows individual voters to challenge burdens on their right to vote in court. This provision may help to deal with threats to voting rights that are hard to anticipate in advance of future elections.
• Protection of ballots and other materials for later review. If there is malfeasance in the administration of an election, it is important that records be made available so that the vote count can be confirmed—and if needed, corrected. The FTVA would require a paper record of every vote, verified by the voter. It would strengthen rules requiring preservation of election-related records and equipment. And it would establish new safeguards for the security of voting machines and voting data.
• Preventing removal of election officials. Finally, the FTVA prevents state officials from removing and replacing local election officials except for “gross negligence, neglect of duty, or malfeasance in office.”³² A new law in Georgia, which allows the State Election Board, prompted by the state legislature, to remove and replace local election officials,³³ threatens to allow a greater number of conspiracy-minded election officials into key positions. If passed, the FTVA would help prevent that.

Collectively, these provisions would do a lot to help safeguard American elections.

However, there is more that Congress can and should do. One idea would be to reduce the discretion of front-line election workers. In recent elections, there have been concerns that thousands of ballots could be rejected under the pretense of vague and arbitrary state laws. For example, in Pennsylvania, for a period of time, it was left to individual counties to decide whether to count mail ballots that had not been put into a “secrecy envelope”³⁴—an extra third envelope that technically made it harder for someone to see the contents of the ballot, but that was not really necessary. Additionally, there was a dispute over whether individual counties could reject ballots if the signature on the envelope did not appear to match the signature on file. The Pennsylvania Supreme Court ultimately ruled that ballots could not be rejected for that reason.³⁵

With a new cohort of election administrators who believe fraud is rampant, any discretion is an opportunity to improperly reject valid votes. Congress should consider proactively prohibiting election workers from rejecting ballots based on rules that require their unfettered discretion. Furthermore, Congress could prohibit ballots from being rejected based on rules that are not applied in a consistent manner across the state.

Lastly, Congress should consider imposing additional standards for processes such as post-election audits, ballot-handling, and transparency. For something as basic and important as keeping a vote secure, it makes no sense to have 50 different state standards.

Threat No. 3: Congress might overturn the Electoral College results

The third major threat is that members of Congress themselves may reject the legitimate Electoral College results and appoint their own electors, effectively reversing the outcome of the election. In January 2021, in the immediate wake of an attack on the U.S. Capitol, 147 members of Congress—all Republicans—voted against certifying the results of the election.³⁶ That is more than half of the Republicans who served in Congress at the time and nearly two-thirds of Republicans in the House of Representatives.

The fact is that there was no basis whatsoever to object to the results. Officials at the U.S. Department of Homeland Security described the election as “the most secure in modern history.”³⁷ Despite more than 60 lawsuits³⁸ and countless post-election audits and other reviews, there was never a shred of evidence of any electorally significant fraud.³⁹

However, one of the reasons that members of Congress may have felt at liberty to vote against certification is that the existing law that governs the certification process—the Electoral Count Act (ECA) of 1887—is vague and outdated.⁴⁰ The text of the ECA is confusing on key issues such as the role of the vice president and the precise circumstances under which members of Congress may object to the counting of electoral votes. This lack of clarity helped fuel the wacky legal theories that advisers to President Trump concocted in their efforts to overturn the results of the 2020 election.⁴¹

A clearer, modernized version of the ECA could help standardize the process of certifying the results and prevent frivolous objections. It could clarify, for example, the ministerial role of the vice president, as well as detail the specific, narrow grounds upon which objections to certification must be based. And it could set out procedures addressing genuine emergencies—such as natural disasters—that may disrupt an election.

Looking to the long term

Each of the preceding sections identifies a threat to fair elections and offers short-term solutions—ways to clarify and strengthen electoral rules to reduce the likelihood of a failed election in which the losing candidate takes office instead of the legitimate winner. It is unlikely, however, that any of these solutions will make substantial headway on the deeper problem—the lack of trust in America’s democratic elections.

The core problem is this: In America’s polarized, two-party system, if either party turns against democracy, it is extremely difficult to unite a pro-democracy coalition. There continue to be many Republicans who believe in free and fair elections—and a majority who oppose the January 6 attack on the Capitol.⁴² But the de facto standard bearer of the Republican Party—Donald Trump—has made attacking the legitimacy of elections his singular obsession. For as long as Trump-aligned conspiracists hold sway, that forces pro-democracy citizens who align with the Republican Party to make a binary choice: Do they support democracy, or do they support the party that aligns with them on the issues that they care about? The lack of other options puts democracy at grave risk.

Making it possible for more political choices to emerge is a major challenge—and one that would require current members of Congress to take a broad view of their own political self-interest. In the short-term, nearly every elected leader has a strong incentive to maintain the system that got them elected—a perennial challenge to proponents of political reform. But at this moment, the threat to democracy is a threat to all elected officeholders.

A system that would allow for other political parties would force both Democrats and Republicans to adapt. But they would be adapting to a new democratic system in order to avoid succumbing to an undemocratic one. And there are a range of policy options that might allow new political parties to emerge, such as ranked-choice voting (RCV),⁴³ eliminating partisan primaries,⁴⁴ fusion voting,⁴⁵ and multimember districts with RCV,⁴⁶ to name a few. Regardless of whether any one of these is the right solution, these are the kinds of big ideas that ought to be on the table.

This is not just another day at the office for democracy. President Biden described this moment as “the most significant test of our democracy since the Civil War.”⁴⁷ Passing that test is going to require, at a minimum, a willingness to reconsider America’s political business as usual.