Recent reporting has made it all the more clear just how close we came to having the will of the American people overturned by politicians and accomplices willing to do anything to cling to power. What held back the dam? As journalist Barton Gellman explained in The Atlantic, “despite enormous pressure, none of the six contested states put forward an alternate slate of electors for Trump. Only later, as Congress prepared to count the electoral votes, did legislators in some of those states begin talking unofficially about ‘decertifying’ the Biden electors.”
That’s what makes it so concerning that some state legislators are continuing to work to enshrine policies that would allow partisans to subvert the will of the voters into state law. This new threat first emerged in 2021 and is – alarmingly – continuing this year. You can track all these bills in our 50-state election subversion chart, in addition to our State Voting Rights Tracker.
What follows is an analysis of where election subversion efforts stand in nine states anticipated to be election battlegrounds in 2024 – Arizona, Florida, Georgia, Michigan, North Carolina, Ohio, Pennsylvania, Texas, and Wisconsin – and what legislative threats could allow for partisan interference in future elections.
Topline threats: Legislative interference in election administration and election results; potential new SOS/Governor overriding the will of the voters; partisan reviews of election results.
Arizona’s existing vote counting and certification procedures do not appear to create opportunities for political actors to alter election results or fail to certify them. However, new legislation would do exactly that, if enacted.
- AZ H 2596 (2022) would radically overhaul Arizona’s election laws, and most alarmingly, give the Legislature the right to invalidate the results of any election. Specifically, the bill would require the Legislature to review the results of each regular primary and general election, and decide to accept or reject the election results. If the Legislature were to reject the election results, any qualified voter could sue for a new election. Additionally, the bill would allow the Legislature to audit election results for any regular primary or general election.
- AZ S 1629 (2022) would require the Auditor General – an authority with no elections experience – to conduct a review of election processes, such as voter registration list maintenance, and election results in Maricopa, Pima, and two other counties each election cycle. The Auditor General reports to the partisan Joint Legislative Audit Committee, which has authority to review and approve its audit plans, and typically audits financial compliance. In short, through this new process, the legislature could directly impact election administration in the state.
- AZ H 2476 (2022) would give the state legislature a role in choosing the President by changing how Arizona chooses presidential electors. Specifically, the bill would give the legislature power to directly choose two of the state’s 11 electors. The other nine would be elected by popular vote in each congressional district. The new Arizona congressional maps are predicted to produce four safe Republican seats, three safe Democrat seats, and two toss ups – meaning that this bill could empower the legislature to determine the result of the election in the state.
Between now and 2024, the legislature could enact legislation giving itself the power to determine election results. It may empower itself to choose electors, to veto certified election results, to select presidential electors, regardless of the reported vote results, or to “decertify” elections. More subtly, it could interfere with and potentially shape election administration across the state.
The upcoming Secretary of State election is another layer to the threat in Arizona. Michelle Ugenti-Rita, a conservative state senator who has sponsored legislation limiting ballot access, and Mark Finchem, a Trump-endorsed state representative who publicly brags about his presence at the Capitol on January 6, 2021, are running for the office. Either would likely use the maximum authority afforded by that office for party gain. Similarly, if Kari Lake is elected Governor, one could expect her to obstruct the certification of electors contrary to candidate Trump in any way possible. Both Kari Lake and Mark Finchem have been subpoenaed by federal January 6th investigators.
Topline threat: Establishing an election crimes investigation and enforcement unit.
Florida law does not provide a clear path for political actors to interfere with the certification of the results of the presidential election in that state.
- DeSantis proposal (2021) – In November 2021, Florida Governor Ron DeSantis proposed a new, $6 million Office of Election Crimes and Security in his budget, to be staffed with 52 positions, including 20 law enforcement investigators and 25 civilian investigators.
- The newly-amended FL S 524 and FL H 7061 (2022) would grant authority to an Elections Crimes Unit housed within the Department of State. It is similar to, but less problematic than, the governor’s proposal — unlike DeSantis’s proposal, the unit proposed by the current bills would only have jurisdiction over investigations currently held by the Department of State and must refer anything that might ultimately be criminal in nature to local prosecutors. This bill is expected to go through many amendments as it works its way through the legislative process.
Since Florida’s electors went to Trump in 2020, Florida has not explored subversion options pertaining to presidential electors as robustly as the other states in this group.
Existing law does not present an obvious path to sending an alternative slate of electors. However, the legislature does have the authority to call itself into session without the need to involve the Governor. A legislature that embraces the independent state legislature doctrine could certainly call itself into session and appoint an alternative or replacement slate of electors, citing its singular authority to do so under the U.S. Constitution.
A more conventional subversion scenario involves the proposals to create a new election crimes office. This office could be weaponized by a partisan Governor or Attorney General to intimidate voters, civic organizations, and election officials to deter turnout or affect/delay the counting and certification process.
Topline threats: Takeover of Fulton County Board of Elections prior to 2022 elections; potential new SOS/Governor overriding the will of the voters.
Under Georgia law, the governor “shall certify the slates of presidential electors receiving the highest number of votes.” In 2020, Governor Kemp treated his certification of results as a formality that was required of him. However, the statutory language is not explicit, and others have opined that it gives the Georgia governor more leeway.
Current law also charges the secretary of state with identifying “errors” in county returns and empowers the secretary of state to send “incorrect” returns back to the counties for correction and recertification. Barring the identification of an error, the secretary of state “shall” certify results submitted by counties.
County superintendents of elections who discover error or fraud must report results without the erroneous or fraudulent votes included. There is no prescribed process or criteria for making this determination, or for a voter to be notified that their vote may have been discarded due to perceived error or fraud.
- GA SB 202 (2021) A newly enacted law allows a partisan majority of the State Election Board to remove and replace local election administrators. The Board has already begun the process of taking over election administration in Fulton County, the state’s most populous and diverse county. The law also newly empowers the legislature to appoint the chair of the State Election Board, so a majority of the board is beholden to the state legislature. Under this new law, the State Election Board can name a partisan actor to oversee Fulton County elections, with the power to eliminate early vote centers where they are needed, declare error or fraud, deny votes from some precincts, and ultimately certify the candidate of their choosing as the winner.
- (2022) We’re closely monitoring expected legislation around initiating an independent criminal investigation unit to track so-called elections “irregularities,” and legislation that would call elections machines/ballot-tabulating technology into question.
Former Sen. David Perdue has said that he would not have certified the results in 2020 had he been governor at the time. He is now running for governor.
If Rep. Jody Hice is elected secretary of state, he may refuse to even certify the results, by claiming to have identified errors or that the returns are “incorrect.” Rep. Hice voted against the certification of the 2020 election as a member of the U.S. House of Representatives.
A county board of elections that has been taken over by the partisan State Election Board may “discover” fraud or error and disqualify large numbers of votes as a result.
Topline threat: Refusal to certify election results at the county or state level.
In Michigan, certification at the local and state level is conducted by boards of canvassers. At each level, the board votes to certify the reported results or not. At each level, boards are composed of equal numbers of Republican and Democrat members.
If the county board vote results in a tie, then the reported results are sent to the state board of canvassers for resolution. The law is unclear as to what occurs if a tie vote occurs at the state board level. But it does require that the State Board certify the determinations.
State law requires the Governor to certify the electors chosen based on the certification ascertained by the State Board.
- (2022) With a competitive Governor’s race on the horizon, we are closely monitoring expected legislation that would open the door to partisan election reviews, in particular instituting a “forensic audit petition.”
In 2020, the Wayne County board and the State Board both flirted with the possibility of a tie vote of the board. One of the Republican members of the State Board voted to certify in 2020 after some doubt. That member has now been replaced, and the threat of a tie vote in 2024 looms. In fact, media reports that Republicans in several counties are placing people who have embraced fraud falsehoods about the 2020 elections on election canvassing boards.
It is unclear what happens in the event of a tie vote at the state level. Depending on who the secretary of state/Governor is, the executive could send the duly-chosen electors (litigation contingent), could throw the determination to the legislature, or could refuse to certify any slate of electors.
If key states do not certify a slate of electors and no candidate gets 270 electoral votes, the 12th Amendment provides that the U.S. House of Representatives selects the next president, with each state delegation getting only one vote. Given congressional gerrymandering, it is likely that Republicans would control the majority of House congressional delegations.
Topline threat: Partisan interference with election-related litigation.
There is currently no legislative, executive, or other authority to alter election results. However, the state budget, SB 105, passed in November 2021, includes provisions giving legislative leadership the authority to approve or disapprove of any settlement in any lawsuit challenging North Carolina Statutes or state constitution.
This legislation came in the wake of a settlement agreement entered into by the North Carolina State Board of Elections prior to the 2020 presidential election, which was approved by a unanimous, bipartisan vote of the State Board and helped ensure an accessible and orderly election. This new law could prevent quick and orderly resolution of election disputes, leading to protracted and costly litigation in the run-up to future elections, all at taxpayers’ expense.
- (2022) We’re monitoring for expected elections legislation that would shift authority away from the State Board of Elections and allow partisan investigations into elections, and attempts to address “elections crimes.”
Topline threat: Partisan reviews of election results.
There is currently no legislative, executive, or other authority to alter election results. However, former State Treasurer and current U.S. Senate candidate Josh Mandel has called for a review of the election in Ohio (and all 50 states). Secretary of State Frank LaRose has repeatedly defended the integrity of Ohio’s elections and no serious legislative effort is yet underway in Ohio, but could emerge as a trending issue leading up to the 2022 midterms.
- (2022) We’re watching closely for legislation to be introduced creating costly, partisan reviews of election results.
Topline threat: Partisan reviews of election results; potential new SOS/Governor overriding the will of the voters.
The statutory language governing certification is mandatory (“shall”) in every relevant section, suggesting that certification is a mandatory duty, not a discretionary act.
Republican Senate President Pro Tempore Jake Corman said before the 2020 presidential election that he believes the legislature plays no role in the selection of presidential electors. However, he later joined a letter sent to Republican leaders in Congress asking them to delay or object to Pennsylvania’s certified presidential electors.
- PA SB 819 and PA SB 821 (2021) would transfer the power to certify certain elections away from the Secretary of the Commonwealth (a position appointed by, and seving at the pleasure of, Governor Tom Wolf, a Democrat) to a newly established election commission. The bill has not advanced but remains active through the 2022 legislative session.
The power to certify election results lies exclusively in the executive branch, meaning that a change in governor could have significant, if unclear, consequences for future presidential elections.
In December 2020, Pennsylvania state legislators sent letters to Pennsylvania’s congressional delegation asking them to object to Pennsylvania’s slate of electors. On January 4, 2021, legislators (including Senator Corman) sent a similar letter to Republican leaders in Congress, again calling for Congress to delay or object to Pennsylvania’s certified presidential electors.
Topline threat: Partisan reviews of election results.
Legislation passed during the regular and special sessions in 2021 created new requirements for risk-limiting and randomized audits. These new post-election audits are ill-defined in the bills that implement them, so observers should monitor the new Secretary of State (John Scott, who briefly served as counsel on one of the cases challenging the 2020 election results in Pennsylvania) concerning their implementation.
More concerningly, legislation to require a partisan review of the 2020 election and to allow losing candidates and party chairs to require review of future elections passed the Senate in the final two special sessions. Should this legislation reappear, it will lead to vast uncertainty and lost confidence in future election results.
- (2022) We’re watching closely for calls for partisan elections reviews of the 2020 election and for legislation to be introduced allowing for such costly, partisan reviews of future elections, even with little evidence.
- (2022) With 2022 voting already underway in Texas, election officials are struggling to implement S.B. 1 – the election overhaul passed last year. With new, confusing requirements for mail ballot applications and mail ballot return, we are monitoring the risk that many valid votes will not be counted. Data from clerks has shown alarmingly high rates of rejection for mail ballot applications – as high as 50% in the counties that include Austin, San Antonio, and Houston. In Harris County, it is reported that about 40% of mail ballot applications and mail ballots are being flagged for rejection.
Topline threats: Legislative takeover of elections; criminalizing election administrators for increasing access; partisan reviews of election results.
Wisconsin certifies its results through a three layer process – the municipal level, the county level, and the state level. The place a political actor could most effectively disrupt the election outcome is at the county canvass stage.
The code requires that the three-person bipartisan board of county canvassers agree on the canvass results. The county canvassers can choose to “reject” votes. It is unclear what happens if the members cannot agree on the results (e.g. if one member wants to reject large numbers of votes and the others do not). The Wisconsin Election Commission does not appear to have authority to compel the county to issue certified results, and seems to have no ability to count votes not given to it by the county.
- (2022) If Governor Evers loses the Governor’s seat in 2022, legislators will likely act on proposals to dissolve the Wisconsin Elections Commission (WEC), which has supported voter access, with a new election administration model. WI A 981 (2022), for example, would restructure how elections are administered in Wisconsin by dissolving the Wisconsin Election Commission (WEC) and transferring all of its duties, staff, and assets to the Secretary of State, effective June 30, 2023.
- (2022) We’re also concerned about expected legislation that would make it easier for partisan actors to try to level civil or criminal complaints against elections administrators for routine actions, as well as legislation that would make it much easier for partisan actors to request a large-scale review of an election after certification.
The Trump campaign attempted to have tens of thousands of 2020 votes tossed alleging that guidance from the Wisconsin Election Commission was illegal, and he lost his case without a ruling on the merits.
The guidance remains controversial and would create an obvious reason for a member of the three-person bipartisan board of county canvassers to assert a need to reject votes. If there is disagreement and a county does not return results, it is unclear if or how that county’s votes would count in the election.
If Governor Evers loses the Governor’s seat, the legislature will likely dissolve the WEC and could vest singular (and discretionary) authority to determine elections with the secretary of state, Governor, or even the legislature itself.
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