It’s 2024. Trump Backers Won’t Certify the Election. What Next, Legally?

It’s a nightmare scenario for American democracy: The officials in charge of certifying an election refuse to do so, setting off a blizzard of litigation and possibly a constitutional crisis.

And there are worrying signs that the fears of independent scholars, Democrats and a few anti-Trump Republicans could become a reality. We could soon be in legal terra incognita, they said — like the days when medieval cartographers would write “Here Be Dragons” along the unexplored edges of world maps.

“It would be completely unprecedented,” said Nathaniel Persily, an elections expert at Stanford University. “I hate to be apocalyptic,” he added, but the United States could be headed for the kind of electoral chaos that “our system is incapable of handling.”

In Arizona, Kari Lake, a charismatic former television anchor, and Mark Finchem, a state lawmaker, have a very good chance of becoming governor and secretary of state. Both are ardent supporters of Donald Trump and his false claims that the 2020 election was stolen.

On Friday, a group sponsored by Representative Liz Cheney, the vice chairwoman of the House committee investigating the Capitol assault, put $500,000 behind a television and digital ad that underscores the alarm some anti-Trump Republicans share about Lake and Finchem.

“If you care about the survival of our republic, we cannot give people power who will not honor elections,” Cheney says in the ad. “We must have elected officials who honor that responsibility.”

Another reason for the worries about Arizona in particular: Unlike in other states where Trump has promoted election-denying candidates, several of the politicians who pushed back on his calls to overturn the 2020 results will be gone.

Gov. Doug Ducey, a Republican who resisted Trump’s efforts in 2020, is leaving office after his term is up, as is Attorney General Mark Brnovich, an ally in that opposition. Rusty Bowers, who as the Republican speaker of the State House stood with Ducey and Brnovich, lost his primary this year for a State Senate seat. And even Brnovich, who ran unsuccessfully for the U.S. Senate against another election denier, Blake Masters, has shifted his tone about the 2020 election.

“Ducey was a little bit of a moderating factor,” said Marc Elias, the Democratic Party’s leading election lawyer. But Ducey was also “willing to tolerate a lot of crazy,” Elias added.

The governor is backing Lake, as is the Republican Governors Association, actions that Sarah Longwell, a Republican strategist whose group is spending at least $3 million in Arizona opposing Lake and Finchem, called “despicable.” Longwell said that Lake was especially dangerous because of her ability to “talk normal to the normies and crazy to the crazies.”

What could happen if Lake and Finchem win?

The most worrisome scenario, several nonpartisan experts said, is that Finchem and Lake might refuse to fulfill the traditionally ceremonial act of “canvassing” the results of a presidential election under Arizona law, or that the governor could refuse to sign the required “certificate of ascertainment” that is then sent to Washington.

Elias’s firm, which has grown to nearly 80 lawyers, would then have to decide whether to sue in state or federal court, or perhaps both, depending on which path was more relevant. But he acknowledged some uncertainty about how that litigation might play out.

One new factor in 2024 may be an overhauled Electoral Count Act, which is expected to pass Congress after the midterms. It would create a new panel of three federal judges who would rule on election-related lawsuits, with appeals going directly to the Supreme Court. Proponents say the new panel would allow disputes to be adjudicated more quickly.

“It’s not actually all that easy to anoint the loser of an election the winner,” cautioned David Becker, the director of the Center for Election Innovation and Research, a nonpartisan group.

“The one exception to that is the presidential election,” Becker said, in which there’s an opportunity for a “corrupt individual” to send a slate of electors to Washington that does not reflect the will of voters. If the national Electoral College results were close, a protracted dispute in Arizona could hamper Congress from rapidly determining the overall winner.

But Becker said he was more worried about the prospect for political violence fueled by uncertainty than he was about the integrity of the legal system.

Neither Lake nor Finchem responded to questions. Finchem has said he would certify the next election “as long as all lawful votes are counted and all votes cast are under the law,” while failing to specify what he means by “lawful.” Finchem has also said that he couldn’t imagine President Biden winning.

The power of a secretary of state

Secretaries of state also have enormous power over elections, though it’s county officials that actually run them.

To take just one recent example: Finchem and Lake both support a return to hand-counting ballots, which election experts say would introduce more errors and uncertainty into the process.

One rural Arizona county controlled by Republicans, Cochise County, initially planned to count every vote in the midterms by hand — only to back down when Katie Hobbs, the Democratic secretary of state who is running for governor against Lake, threatened to sue.

In neighboring Nevada, another G.O.P.-controlled county’s plan to count ballots by hand is on hold after the State Supreme Court ruled the process illegal. The Republican secretary of state, Barbara Cegavske, then ordered the hand-counting process to “cease immediately.” Her possible successor, the Trump-backed Jim Marchant, might have acted differently.

One of the Arizona secretary of state’s chief tasks is assembling the elections procedures manual that, once approved by the governor and the attorney general, is distributed to county and local officials. Brnovich refused to accept the 2021 manual proposed by Hobbs, so the state has been using the 2019 edition.

The manual is limited to the confines of Arizona election law. But Finchem could tinker with the rules regarding the approval of voter registration, or ballot drop boxes, in ways that subtly favor Republicans, said Jim Barton, an election lawyer in Arizona. He could also adjust the certification procedure for presidential elections.

“You can imagine a lot of mischief with all the nitty-gritty stuff that nobody pays attention to,” said Richard Hasen, an elections expert at the University of California, Los Angeles.

Looming over all this is a Supreme Court case on elections that is heading to oral arguments this fall.

The justices are expected to rule on a previously obscure legal theory called the independent state legislature doctrine. Conservatives argue that the Constitution granted state legislatures, rather than secretaries of state or courts, the full authority to determine how federal elections are carried out; liberals and many legal scholars say that’s nonsense.

If the court adopts the most aggressive version of the legal theory, Persily noted, it could raise questions about the constitutionality of the Electoral Count Act, adding a new wrinkle of uncertainty.

“My hair is on fire” to an even greater degree than it was in 2020, said Hasen, who published a prescient book that year called “Election Meltdown.”

What to read

• Nancy Pelosi’s husband, Paul Pelosi, was hospitalized after he was assaulted by someone who broke into the couple’s residence in San Francisco looking for the House speaker. Follow live updates.

• Senator Ron Johnson of Wisconsin spends a staggering amount of time on talk radio. And, Reid Epstein writes, it’s paying off in his vital race this year.

• In Pennsylvania, Dr. Mehmet Oz is struggling in his efforts to win over Black voters, Trip Gabriel reports.

• In the 24 hours before Elon Musk closed his deal for Twitter, some far-right accounts on Twitter have had a surge in new followers, researchers say.

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A barbershop campaign stop

Philly Cuts is more than a barbershop. It is a community gathering place for exchanging gossip, catching up on the news — and, sometimes, hosting campaign events.

Last Saturday, the Democratic nominee for governor in Pennsylvania, Josh Shapiro, stopped in. Before he got there, I saw the barber Damor Cannon, 46, turn to put the finishing touches on the beard of his customer, Michael Woodward.

The word “VOTE” was printed on the back of his T-shirt, and the phrase “Philly Cuts for Shapiro” was on the cape draped around Woodward. On either side of the mirror were framed photos of civil rights leaders. The mirror created a third image, reflecting the present alongside the past.

Thank you for reading On Politics, and for being a subscriber to The New York Times. — Blake

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