WASHINGTON (AP) — This presidential election, the first since the Capitol insurrection on Jan. 6, 2021, will be a stress test of the new systems and guardrails Congress put in place to ensure America’s long tradition of peacefully transferring presidential power.
As Republican Donald Trump and Democrat Kamala Harris race toward the finish line, democracy advocates and elected officials are bracing for a volatile post-Election Day period as legal challenges are filed, bad actors spread misinformation and voters wait for confirmation by the President Congress awaits the results.
“One of the unusual features of this election is that much of the potential danger and so many attacks on the electoral system are focused on the post-election period,” said Wendy Weiser, vice president for democracy at the nonpartisan Brennan Center for Justice.
After the Jan. 6 attack, Congress moved to support the process and prevent a repeat of that unprecedented period when Trump, along with some GOP allies in Congress, refused to concede defeat to President Joe Biden. Trump spent months pushing dozens of failed legal cases before sending his supporters to the U.S. Capitol, where they disrupted the electoral count with a bloody insurrection. He faces federal charges over the scheme, which included false lists of voters from states that falsely claimed he won.
While the new electoral count reform law passed by Congress has clarified post-election processes – to resolve legal challenges more quickly and to emphasize that the vice president has no power to change the election results on January 6 – the new law is by no means as ironclad .
Much depends on the people involved, from the presidential winners and losers to the elected leaders in Congress and voters across America who trust the democratic system that has existed for more than 200 years. Over the weekend, Trump said he and House Speaker Mike Johnson had a “little secret” to winning the election.
Voters are worried about unrest after the election
A poll by The Associated Press-NORC Center for Public Affairs Research found that American voters are approaching the election with great concern about what could follow.
Dick Gephardt, the former chairman of the House of Representatives, is now a board member of the nonpartisan organization Keep our Republic, which promotes civic education about the process in the presidential election battleground states of Michigan, Wisconsin and Pennsylvania.
“We care about one thing, and one thing only: Can Americans still have real confidence in elections and can we achieve a lasting, peaceful transfer of power in all offices, including the presidency?” Gephardt said in a briefing earlier this month.
“January 6, 2021 was really a wake-up call, I think, for all of us,” he said.
It’s not just the onslaught of legal challenges that has Democratic groups worried, as dozens of lawsuits have already been filed by both Republicans and Democrats ahead of Election Day. They say the sheer volume of cases has the potential to sow doubt about the election results and lead to disinformation at home and abroad, as happened in 2020, when Trump’s legal team pushed far-reaching theories that proved wildly misleading .
As Trump tries to retake the White House, he is already setting the stage for challenges to the election, which he says is “too big to be rigged.” The Republican National Committee has made the legal strategy a cornerstone of its election integrity program.
Trump is supported by Republicans on Capitol Hill, including House Speaker Mike Johnson, who used similar language and said he would only accept the results if the election was free and fair.
“We will have a peaceful transition of power,” Johnson, who led one of Trump’s legal challenges in 2020, said on CBS. “I believe President Trump will win, and that will be taken care of.”
A specific line of attack from House Republicans has been to point out that there will be illegal voting by non-citizens, even though it is a crime and state and federal audits have shown it to be extremely occasional. Johnson has pointed to previous House elections, including one in Iowa in 2020 that was won by six votes, to support his concerns.
Rep. Joseph Morelle of New York, the top Democrat on the House Administration Committee, said Johnson was “saying the quiet part out loud,” signaling that Republicans may challenge the result.
That “worries me,” he said.
What happens between the election and the inauguration?
At the Brennan Center, they have been laying out war game scenarios about what could happen after the election, at a time when state election officials are facing a resurgence of conspiracy theories and misinformation about voting.
Built into the process are a series of deadlines between Election Day on Nov. 5 and Inauguration Day on Jan. 20, once routine steps that are now critical milestones that can be reached — or missed.
States are required to certify their electors by Dec. 11 ahead of an Electoral College meeting scheduled for Dec. 17 this year.
The new Congress convenes on January 3 to elect a House speaker and swear in lawmakers. Then, on January 6, Congress holds a joint session to accept the states’ electoral counts – a typically ceremonial session presided over by the vice president.
To strengthen the process after the January 6 attack, the Electoral Count Reform Act introduced several changes designed to strengthen the process and ensure that disputes are resolved by the time Congress meets. Legal challenges to the results will be resolved more quickly, within a shortened period for judicial review, all the way to the Supreme Court if necessary. If a county refuses to certify its results, as some did in the 2022 midterm elections, the governor will have more power to certify the state’s results.
As of Jan. 6, the law now requires 20% of House and Senate members to call on a state’s voters to force a vote to reject it, rather than a single membership threshold per chamber.
“They know that people have a right to go to court and be heard if they have a problem with the election,” said Rep. Zoe Lofgren of California. (*6*)
