Congress made overturning elections harder, but there are still loopholes in the law

When Congress passed the Electoral Count Reform Act in the wake of former President Donald Trump's post-2020 election effort to reverse his loss, leaders in both parties said it would help safeguard future elections.

There are still holes that could be exploited, however, especially at the local level. Some of those holes are already being tested by local officials, such as refusing to certify elections at the county level, according to Matthew Seligman, a fellow at Stanford's Constitutional Law Center and co-author of the 2024 book "How to Steal a Presidential Election."

"Due to the changes in the Electoral Count Reform Act, the effort has shifted to try to get county boards of elections, and then potentially state-level boards of election, to have some kind of authority to refuse to certify the election results," Seligman told USA TODAY.

In 2020, Trump tried to persuade Republican members of Congress and Vice President Mike Pence to refuse to count the Electoral College votes after Joe Biden won the election.

The Electoral Count Reform Act makes that approach more difficult by clarifying that the vice president's vote-counting role is ceremonial and by raising the number of votes in Congress needed to object to election results.

Procedure changes in vote-counting and election certification at the state and local level ? which supporters say are meant to bolster confidence and accuracy in elections ? are now the battleground.

This year has seen last-minute rule changes from the Georgia State Election Board and commissioners in a key Nevada swing county voting against certifying elections.

These "misguided attempts by the State Election Board will delay election results and undermine chain of custody safeguards," warned Georgia Republican Secretary of State Brad Raffensperger in a statement about recent rule changes by the state election board.

Even if the local officials did try to reverse an election using the means laid out below, they very well could fail: A statewide election administrator or governor could intervene, and courts could block efforts to overturn the results – just as they rejected dozens of lawsuits filed by Trump and his allies in 2020.

However, election law experts say the risks show that vulnerabilities still exist, and the system depends on the integrity of the officials and judges in power.

"Means, motive, and opportunity are here to flip this, and that creates real danger," Lawrence Lessig, a Harvard Law professor and Seligman's "How to Steal a Presidential Election" co-author, told USA TODAY.

"To the extent the folks who want to overturn elections think they have identified a vulnerability, I think it is at the county level," Adav Noti, executive director of the nonpartisan Campaign Legal Center, told USA TODAY.

Here's a look at what the Electoral Count Reform Act did and three possible strategies for overturning the election in spite of it:

The 2022 Electoral Count Reform Act

In every presidential election, each state certifies its results and appoints electors who meet in mid-December to cast votes for president and vice president. The electors send certificates of their presidential electoral votes to the federal government. Congress then meets on Jan. 6 of the new year to count the electoral votes.

Starting in 1887, the Electoral Count Act governed procedures for counting presidential electoral votes. The 2022 Electoral Count Reform Act modified those rules, including by clarifying that the vice president's constitutional role of opening electors' vote certificates for counting doesn't include the power to unilaterally reject votes – a position Pence and prominent legal experts across the political spectrum maintained even before the new law.

The new law also requires Congress to honor the state's certification unless a court has ordered it to be modified, with an expedited process for federal courts to hear disputes.

What's true? What's false? Sign up for USA TODAY's Checking the Facts newsletter for all the answers.

Losing candidate is certified at time of deadline

The Electoral Count Reform Act requires a state's governor – or another official, if designated by the state in advance – to certify the state's presidential electors six days before the electors vote in mid-December. In 2024, those dates fall on Dec. 11 and 17, respectively.

That provides a little more than a month for courts to address disputes over a state's election results, such as whether the state included unlawful votes or excluded lawful ones.

Picture this scenario: One candidate is ahead in Georgia after the election, and then a state court judge throws out a number of absentee ballots, resulting in the other candidate leading in the vote. The first candidate appeals that decision, but the other candidate's lawyers flood the court system with delay-inducing filings before the appeals courts can rule, and the governor certifies Georgia's electors for the second candidate when the deadline arrives.

"There are a million ways for lawyers to slow a process down, so if they slow the process down till after the governor's supposed to certify, they've won, even if they ultimately shouldn't have won," Lessig said.

Lessig described the scenario as the most "fear-inducing" ahead of November.

What if a certification deadline is missed?

If a county or state doesn't certify its results on time, the Electoral Count Reform Act doesn't provide a way for the state's electoral votes to be counted by Congress on Jan. 6.

A number of states have already seen individual county officials refuse to certify election results since 2020.

In Reno, Nevada's Washoe County, for example, the majority of the election board voted 'no' on certification in two local elections in July before reversing course about a week later. A Republican member of Atlanta's Fulton County election board refused to certify a primary election in May and is suing over what she claims is her right to do that again.

A USA TODAY review found that local officials have either delayed certifying or voted against certifying election results at least three dozen times since the 2020 election, although those efforts haven't resulted in overturning an outcome.

"Every governor in every battleground state I think is very clearly going to do the right thing, but they may not be able to certify the actual winning electors in the state because of earlier-in-the-process delay and manipulation," Seligman said.

The Georgia State Election Board is facing several lawsuits over last-minute rule changes that the board's critics fear risk certification delays or failures. For example, one recent rule requires counties to conduct a "reasonable inquiry" before certifying results. Another rule requires local precincts to hand-count ballots and confirm the totals match figures produced through machine processes.

To "prevent chaos in November," Democrats have asked an Atlanta judge to declare ahead of the election that the Nov. 12 certification deadline for Georgia counties is mandatory, and the new rules don't change that.

Republican board member Janice Johnston, one of the three members behind the rules, pushed back at a Sept. 23 meeting against fears that the rules could be a basis to not certify. "These rules will help to prevent a last-minute surprise of questioning the results," she said.

Another of those members, Janelle King, has told USA TODAY no approved rules would allow county officials to break the law by delaying certification.

Any effort to block certification at the county level could run into a state official determined to see it happen on schedule.

In a statement to USA TODAY, Raffensperger spokesperson Mike Hassinger said Georgia law explicitly requires counties to certify their elections by Nov. 12, and Raffensperger's "expectation is that all Counties will follow the law and certify their results by that date."

Statewide election officials in Pennsylvania, Arizona and Wisconsin have told USA TODAY they are ready to take local officials to court if they refuse to certify the November presidential election. Raffensperger said it may not be necessary to engage with a Georgia county that doesn't certify, but his office will ultimately make sure counties follow the law.

"There will be a lawsuit filed at 5:01 p.m. on November 12 in Georgia if one of their 159 counties doesn't certify," said David Becker, executive director of the nonprofit Center for Election Innovation & Research, which works with Republican and Democratic election officials to build confidence in elections.

Courts may not know what to do

Because the Electoral Count Reform Act is new, there's no history for courts to rely on when it comes to interpreting the law.

If a governor defies a court order, for example, to certify his or her state's election for a particular candidate, the act doesn't spell out what should happen next. Would the court system say Congress is permitted – or even required – to count the votes of a slate of electors that the governor refused to certify?

That's just one question courts may have to grapple with in a short timeline.

Sylvia Albert, director of voting and elections for the nonpartisan, nonprofit Common Cause, told USA TODAY judges would have little guidance in resolving election issues ? not just because there won't be significant precedent from previous legal cases to guide them, but also because the behind-the-scenes congressional negotiations that resulted in the law didn't leave a large record to guide courts.

"That is the kind of big black hole of – we don't know how a court is going to interpret cases around the ECRA," she said.

Justin Levitt, a Loyola Marymount law professor who has published extensively on election issues, told USA TODAY he couldn't foresee courts producing a result that even arguably deviates from the will of the voters unless the election comes down to just hundreds of votes in a single state, as with the Bush versus Gore presidential election in 2000. Levitt pointed to the 2020 experience – in which Trump lost nearly all of more than 60 court challenges – as evidence of that.

"The law doesn't support just throwing nonsense against the wall and seeing what sticks, as we saw real clear in 2020."

Contributing: Erin Mansfield

This article originally appeared on USA TODAY: Could the 2024 election be overturned? Loopholes to watch for