In response to former President Donald Trump’s efforts to challenge the 2020 election results, Congress enacted the Electoral Count Reform Act, which both political parties asserted would help secure the integrity of future elections.

However, there are still weaknesses that could be manipulated, particularly at the local level. Some local officials are already testing these weak spots, such as not certifying election results at the county level, according to Matthew Seligman, a fellow at Stanford’s Constitutional Law Center and co-author of the upcoming book “How to Steal a Presidential Election.”

“With the changes in the Electoral Count Reform Act, the focus has shifted to persuading county election boards, and perhaps even state-level boards, to claim authority to refuse certifying election outcomes,” Seligman explained to YSL News.

In 2020, Trump attempted to persuade GOP lawmakers and Vice President Mike Pence not to accept the Electoral College votes after Joe Biden emerged victorious.

The Electoral Count Reform Act has made this tactic more challenging by explicitly defining the ceremonial role of the vice president in counting votes and increasing the threshold of congressional votes required to contest election results.

Changes in voting procedures and the certification of elections at both state and local levels—changes that supporters believe are designed to enhance confidence and precision in electoral processes—are where the battles will be fought.

This year, we’ve witnessed late rule alterations from the Georgia State Election Board along with a decision by officials in a pivotal Nevada swing county to reject certifying election results.

Brad Raffensperger, the Georgia Republican Secretary of State, cautioned that these “misguided actions by the State Election Board will lead to delays in election outcomes and compromise the safeguarding of custody protocols” following the state’s recent regulation changes.

Even if local officials attempt to annul an election using these strategies, they could likely face significant obstacles: A statewide election administrator or governor might step in, and courts have the power to thwart moves aimed at overturning election results—much like they dismissed numerous lawsuits initiated by Trump and his supporters in 2020.

Nevertheless, election law specialists emphasize that existing vulnerabilities pose real risks, and the effectiveness of the system largely hinges on the integrity of the officials and judges involved.

“The conditions to change the outcome are in place, which introduces considerable risk,” Lawrence Lessig, a Harvard Law professor and co-author with Seligman on “How to Steal a Presidential Election,” told YSL News.

“Those seeking to overturn elections may have pinpointed a vulnerability at the county level,” said Adav Noti, executive director of the nonpartisan Campaign Legal Center, while speaking to YSL News.

Here’s an overview of what the Electoral Count Reform Act entails and three potential tactics that could be employed to subvert an election despite its provisions:

The 2022 Electoral Count Reform Act

During each presidential election, states certify their results and appoint electors to convene in mid-December to cast their votes for the president and vice president. These electors then submit certificates for their electoral votes to the federal government. Subsequently, Congress convenes on January 6 of the following year to tally these electoral votes.

Since 1887, the Electoral Count Act has managed the processes for counting presidential electoral votes. The 2022 Electoral Count Reform Act revised those guidelines by specifying that the vice president’s constitutional duty to open the certificates for counting does not extend to the unilateral rejection of votes—an assertion made by Pence and various legal experts from all political backgrounds prior to the implementation of the new law.

The updated law also mandates that Congress must respect the state’s certifications unless a court orders a modification, ensuring a swift route for federal courts to resolve disputes.

Certification of the losing candidate by the deadline

The Electoral Count Reform Act specifies that a state’s governor—or another designated official—must certify the state’s presidential electors six days prior to the electors’ voting in mid-December. For 2024, these critical dates are December 11 for certification and December 17 for electors’ voting.

This timeline offers just over a month for courts to settle any disputes regarding a state’s election results—like disputes on whether unlawful votes were cast or lawful ones were omitted.

Imagine a scenario where one candidate is leading in Georgia after the election, only for a state court judge to invalidate several absentee ballots, resulting in the other candidate taking the lead. If the first candidate seeks to appeal this ruling, the second candidate’s legal team could inundate the court system with filings that cause delays until after the governor certifies Georgia’s electors for the second candidate when the deadline lapses.

“There are numerous ways for attorneys to slow down processes, so if they can extend things until after the governor’s certification deadline, they effectively win, even if the outcome ultimately should have favored the other candidate.”

“I have won,” stated Lessig.

Lessig referred to the situation as the most “terrifying scenario” leading up to November.

What happens if a certification deadline is overlooked?

Should a state or county fail to certify its election results within the set time frame, the Electoral Count Reform Act does not offer a mechanism for Congress to count that state’s electoral votes on January 6.

Since 2020, several states have experienced local election officials rejecting the certification of results.

For instance, in Washoe County, Nevada, the majority of the election board initially voted against certifying two local elections in July, only to reverse their decision about a week later. In Atlanta’s Fulton County, a Republican election board member declined to certify a primary election in May and is currently suing over her alleged right to do so again.

A review by YSL News found that local officials have either delayed or voted against certifying election results on at least three dozen occasions since the 2020 election, though these attempts have not led to any outcomes being overturned thus far.

“I believe every governor in key battleground states will ultimately act appropriately, but they might struggle to certify the actual winning electors due to previous delays and manipulations,” noted Seligman.

The Georgia State Election Board is currently facing multiple lawsuits regarding last-minute changes to rules which critics claim could lead to issues with certification. One recent rule mandates that counties perform a “reasonable inquiry” before certifying results, while another requires local precincts to hand-count ballots and verify that their totals align with machine-generated figures.

To “avoid chaos in November,” Democrats have petitioned a judge in Atlanta to affirm that the November 12 certification deadline for counties in Georgia is obligatory, and that the new regulations do not alter that requirement.

Republican board member Janice Johnston, one of the three members who supported the new rules, argued during a meeting on September 23 that the rules are not a basis for non-certification. “These regulations will help ensure there isn’t a last-minute scramble questioning the results,” she stated.

Another board member, Janelle King, informed YSL News that no approved regulations would permit county officials to violate the law by delaying certification.

If there is an attempt to block certification at the county level, a state official who is committed to ensuring the schedule is adhered to might intervene.

Mike Hassinger, a spokesperson for Raffensperger, stated to YSL News that Georgia law clearly stipulates counties must complete their election certifications by November 12. Raffensperger’s “expectation is that all counties will comply with the law and certify their results by that deadline.”

Election officials in Pennsylvania, Arizona, and Wisconsin have previously indicated to YSL News that they are prepared to initiate legal action against local officials who neglect to certify the November presidential election. Raffensperger mentioned that it may not be necessary to take action against a Georgia county that fails to certify; however, his office will ensure that counties fulfill the legal certification requirements.

“A lawsuit will be filed at 5:01 PM on November 12 in Georgia if any of the 159 counties does not certify,” warned David Becker, executive director of the nonprofit Center for Election Innovation & Research, which collaborates with both Republican and Democratic election officials to bolster confidence in electoral processes.

Courts may struggle with interpretation

Given that the Electoral Count Reform Act is new, courts lack a precedent for interpreting its provisions.

For instance, if a governor were to contradict a court order to certify their state’s election for a specific candidate, the act does not clarify the subsequent actions. Would the judicial system assert that Congress is permitted – or even obligated – to consider the votes from electors that the governor chose not to certify?

This is just one of many questions that courts might need to contend with within a tight timeframe.

Sylvia Albert, who directs Voting and Elections for the nonpartisan organization Common Cause, mentioned to YSL News that judges may face challenges due to the lack of substantial guidance in addressing electoral disputes – not only because there are few precedents from prior legal cases but also due to the limited documentation from the congressional negotiations that led to the establishment of the law.

“This creates a significant uncertainty: we don’t know how a court will interpret cases involving the ECRA,” she expressed.

Justin Levitt, a law professor at Loyola Marymount with extensive publications on election topics, shared with YSL News that he doesn’t foresee courts reaching a conclusion that diverges from the voters’ intentions, unless the election margin is incredibly narrow, involving just a few hundred votes in a single state.

Referring to the 2000 Bush v. Gore presidential election, Levitt highlighted the events of 2020, where Trump faced over 60 legal challenges but lost nearly all of them. He interpreted this as a demonstration of the legal reality.

“The legal framework does not allow for frivolous lawsuits to simply be tested; we saw this clearly in 2020,” he stated.