Column: Presidential battle won't end election night. Here's what can go wrong

Men, including one wearing a fur hat with horns, are confronted by U.S. Capitol Police officers outside the Senate Chamber.

By Doyle McManusWashington Columnist

Oct. 21, 2024 3 AM PT

No matter who wins, Donald Trump will claim the election was rigged. If he loses, he will challenge the outcome in the courts and perhaps beyond.
Last time, despite the Jan. 6 Capitol riot, the guardrails of democracy held.
What will happen this time? Here’s a look at four scenarios in which a close election could spur trouble.

WASHINGTON — The presidential election is still too close to call, but here are three predictions you can take to the bank:

First, we won’t know who won on election night. Three potentially decisive states — Arizona, Pennsylvania and Wisconsin — are notoriously slow at counting. A winner may not emerge before the end of the week.

Second, no matter who wins, Donald Trump will charge that the vote was rigged. He made that claim in 2020, when he lost decisively to Joe Biden. He claimed (again without evidence) that he was robbed of popular votes in 2016, even though he won the election. He has already charged that Democrats will cheat this year. “It’s the only way they’re going to win,” he claimed.

Third, if Trump loses, he will challenge the outcome in the courts, just as he did in 2020. “It’s not over on election day; it’s over on inauguration day,” Trump campaign manager Chris LaCivita said earlier this year. So get ready for long and bitter legal battles that could end up in the Supreme Court with its Trump-friendly majority.

We’ve been here before. Four years ago, Trump tried to undo Biden’s election with a barrage of legal challenges that failed. He asked Republican state legislators to overturn results and demanded that then-Vice President Mike Pence block the count of electoral votes. All refused. A mob of angry, deluded Trump supporters tried to stop the process by invading the Capitol on Jan. 6, 2021; that failed, too.

The guardrails of democracy held — and legal scholars say those guardrails are a little stronger now.

“I’m very confident that the candidate who wins on Nov. 5 will be inaugurated on Jan. 20,” said Justin Levitt, who teaches election law at Loyola Law School in L.A. But a lot can happen between those two dates, he warned.

“There can be litigation. There can be delays. There will be a lot of misinformation, some of it spread on purpose,” he said. “There are real opportunities for unrest, maybe even violence.”

Here are four scenarios in which a close election could run into trouble:

Asking the courts to decide

“There is always the risk of another Bush v Gore,” Rick Hasen of UCLA Law School wrote recently, referring to the 2000 Supreme Court decision that decided that year’s presidential election between George W. Bush and Al Gore. “If the election comes down to a few thousand votes or less in a state that is crucial for an electoral college victory, then we’ll expect both sides to litigate as hard as they can.”

In Pennsylvania, for example, Republicans filed a lawsuit complaining the state’s rules for accepting absentee ballots that arrive with small errors, like a missing date on the envelope, are too lenient. The state Supreme Court left it up to the state’s 67 counties to decide how to handle the ballots.

If those ballots could swing the election, the Trump campaign could argue that it’s unfair for counties to adopt different rules. A similar issue prompted the high court to act in Bush vs. Gore.

Republicans have already filed more than 100 lawsuits challenging election rules in several states to improve their chances after election day.

Refusing to certify results

What if local officials refuse to certify election results they don’t like?

Most legal scholars say courts are almost certain to knock down those attempts — but they could still lead to delays, legal battles and potential unrest.

The once-obscure issue of certification achieved more notoriety after Georgia’s Republican-led election board issued new rules requiring county officials to investigate potential irregularities before they certify results.

Certification has traditionally been an administrative action in which election boards merely confirm that the compiled results match up with what precincts have reported. Investigating allegations of irregularity or fraud is up to law enforcement agencies, not election boards.

In several counties around the country, pro-Trump election officials have briefly refused to certify election results, but courts have uniformly ruled against them. Two Georgia courts have already ruled that the state election board’s new rules are invalid.

“Certification is not likely to produce a [constitutional] crisis,” said Edward Foley, a leading election law expert at Ohio State University. “The courts are going to handle it as they already do.”

The danger of violence

But all those challenges raise the prospect of violence.

On Jan. 6, 2021, Trump told his followers: “If you don’t fight like hell, you won’t have a country anymore.”

This year, he has revived that warning, telling supporters that the stakes of the election are existential — literally. Last month, in Wisconsin, he told a rally that if he doesn’t win, migrants “will walk into your kitchen. They will cut your throat.”

“You won’t have a country anymore,” he said, again.

Violence is always possible, even likely. Trump has already been the target of two assassination attempts. But law enforcement agencies have spent four years preparing to protect polling places, tabulation centers, election officials and judges.

Detroit’s tabulation center, which Trump claimed (without evidence) was a hotbed of fraud, has been outfitted with bulletproof glass. Maricopa County, Ariz., where election officials have been attacked by pro-Trump zealots, is stationing snipers on the roof. The U.S. Capitol Police have worked to ensure that Jan. 6 cannot recur.

In the end, election law scholars say violence need not derail the outcome.

“I do worry about it,” said Levitt. “We live in a climate where some people consider threats of violence an acceptable tactic. … But it’s not going to affect the outcome of the election any more than it did on January 6.”

Congress gets the final say — again

Under the Constitution, Congress formally counts the electoral votes on Jan. 6. That normally ceremonial process almost went off the rails in 2021, when Trump urged Republicans to block legitimately elected Biden electors from swing states. Two-thirds of House Republicans supported the scheme, but Democrats and moderate Republicans quashed it.

That scenario is less likely to recur, thanks to a law Congress passed in 2022, making it harder to challenge electoral votes and clarifying that the vice president has no power to direct the outcome.

Still, if one-fifth of the members of each chamber object to a state’s electoral votes, both houses must vote to accept or reject them. If both chambers have GOP majorities, the outcome could come down to a handful of moderate Republicans like Sens. Susan Collins of Maine and Lisa Murkowski of Alaska.

There’s also a wild card in the list of potential nightmares: What happens if the electoral vote is a tie, 269 to 269?

In that case, the House of Representatives would choose the next president under a rule that would favor Republicans. Instead of a normal vote by individual members of the House, each state’s House delegation would get one vote — meaning California and North Dakota would get equal weight. In the current House, 26 states have mostly Republican House members; only 22, including California’s, are dominated by Democrats. (Two states are evenly divided.)

A tie hasn’t happened since 1800, when Thomas Jefferson tied with Aaron Burr. (Jefferson won the runoff.) Polymarket, a prediction market, puts the odds of a tie this year at 4%.

Misinformation will remain a danger

This is not a “both sides” issue. Only one party has told its followers that if it loses, the only possible reason will be that the election was stolen.

It doesn’t seem to matter whether the challenges are plausible. In 2020, they weren’t, as evidenced by Trump’s long string of losses in the courts. But polls this month have found that most GOP voters believe election fraud is likely to occur this year even though no significant instances have been proven in decades.

Claiming that every election is rigged is not only part of Trump’s political message; it has become part of his business model.

Last time, he raised more than $250 million after election day with his claims. Only $13 million of those donations funded legal efforts to reverse the result. The rest went into Trump’s political coffers, giving him an early start toward his next campaign.

And the misinformation Trump has cultivated won’t go away after inauguration day. He has made bitter post-election battles a durable feature of American politics.

“It is profoundly unhealthy for democracy,” said Levitt. “It is a long-term cancer in the system.”

Read more McManus columns on the election: