Why it would be difficult for Trump to overturn the 2024 election results

Donald Trump has doubled down on his baseless accusations that Democrats are planning to “cheat” or “steal” the election. This is fueling fears that the former president is setting the stage for an attempt to overturn the result if Vice President Kamala Harris wins.

But any attempt to derail the electoral process this time would hit a new set of guardrails, legal experts say, making it unlikely that such an attempt would be successful. The new protections include: an election law passed by Congress after the January 6 insurrection, recent court rulings, more vigilance by state election officials and more aggressive law enforcement by authorities determined to prevent a repeat of violent scenes from the US -Capitol to prevent years ago.

“It’s very difficult this time,” said law professor Richard Hasen, an election expert at UCLA.

In 2020, Trump issued similar warnings before the vote. When he lost to Joe Biden, he lobbied officials in swing states to overturn the result, filed a barrage of fraud lawsuits and urged his Vice President Mike Pence to refuse to certify the result.

But state officials resisted his pressure, judges dismissed his team's lawsuits, and Pence defied Trump and fulfilled his constitutional duty to certify the results of the vote.

Unlike in 2020, Trump is no longer president and does not have executive power. And the bipartisan Electoral Count Reform Act passed in 2022 tightened the process for casting and counting electoral votes, gave federal courts a clear role in quickly resolving disputes and made it harder for lawmakers to raise frivolous objections.

Some attempts by pro-Trump groups to change the counting and certification of votes have already failed, with judges rejecting the measures as illegal and unconstitutional. Last week, the Georgia Supreme Court rejected an attempt by Trump-loyal Republicans to introduce new election laws in the state, including one that would have required hand-counting of ballots and others that would have delayed the certification process.

If Trump tried to challenge the election results, he would have two possible paths to try to overturn the results, and both paths are “futile,” said Hasen, director of the Safeguarding Democracy Project at UCLA Law School.

One option is to delay certification of results in certain counties or states by alleging irregularities or making other claims. There are now dozens of state and local election officials in swing states who have openly rejected the 2020 results, raising the possibility that they could refuse to certify vote counts or cause other delays.

But such efforts would most likely come to nothing, legal experts say. Secretaries of state and attorneys general in key states like Pennsylvania and Arizona have vowed to take local governments to court if they try to delay the process.

“There may still be some people who are trying to get involved in these shenanigans,” said Gowri Ramachandran of the Elections and Government Program at the Brennan Center for Justice at New York University School of Law. “But I think ultimately a combination of state election officials, the attorneys general who often represent them in court, and the courts themselves will tell people to just do their job and certify the correct results.”

Last month, top officials in three swing states — Pennsylvania, Arizona and Wisconsin — said they were prepared to take local government authorities to court if they refused to certify the results.

“We would immediately take them to court to compel them to certify, and we are confident — because of the clarity of Pennsylvania’s election law — that the courts would promptly require counties to certify their election results,” Pennsylvania’s secretary of state said Al Smith.

The other path for Trump would be to try to overturn the results in the House and Senate. First, Republicans would have to gain control of both chambers and declare the Electoral Count Reform Act unconstitutional. In that scenario, the Trump team would try to persuade Republican-controlled state legislatures to send competing slates of electors, even though that is the legal role of governors.

The approach would require securing electoral victories in both chambers of Congress and in state legislatures such as Pennsylvania and Michigan. Currently, control of the Pennsylvania legislature is split between the two parties, and Democrats govern the Michigan legislature.

The key figure in this scenario would be the Speaker of the House of Representatives, who could potentially prevent any candidate from achieving a majority in the Electoral College. This would require the House of Representatives to hold an election for the next president, with each state delegation having a single vote. Republicans maintain a lead and control more state delegations.

If all of these political things came together, organizers would bet that the Supreme Court would rule in their favor and support their defiance of a federal election law.

Matthew Sanderson, an election lawyer based in Washington, D.C., said he thinks it is extremely unlikely that this scenario will come to an end.

“Even if Republicans win narrow majorities in the new Congress that meets on January 3,” he said by email, “I find it incredibly difficult to believe that a large number of Republican senators and House members who recently “The Count Reform Act would take effect in just a few days and pass a resolution calling it 'unconstitutional' before the Jan. 6 joint session.”

But even if that were to happen, Sanderson said, Congress couldn't simply declare its existing laws “unconstitutional.”

“There is no mechanism for this,” he said. “Congress can only repeal its previous laws, and a joint resolution of Congress would repeal nothing. On that basis, I think even a conservative Supreme Court would say that the Electoral Count Act (as reformed) would govern the process.”

Armed groups and electoral chaos

Despite the obstacles standing in the way of a legal path to overturning the election results, Trump's explosive rhetoric has raised concerns among federal, state and local officials about a possible ongoing crisis after Election Day and possible political violence at polling places or state capitols.

Trump's words risk galvanizing armed groups that responded to his rhetoric four years ago by storming the Capitol and attacking police officers, say former police officers and researchers who track the groups.

With the election expected to be decided by a razor-thin margin, it could be days or even weeks before a clear winner is announced. And officials worry that a window of uncertainty could provide an opportunity for armed groups to foment chaos or violence.

Anti-government militias and other like-minded groups are organizing and recruiting on social media at a scale and pace not seen since the events leading up to January 6, 2021, according to Frank Figliuzzi, a former deputy director of counterintelligence at the FBI, writing for NBC News contributes to national security.

To prevent a repeat of January 6, the FBI, state election officials and local law enforcement are taking extensive precautions to ensure ballots are counted and deter any attempt to derail the process. Given the heightened security risk, some state officials have made plans to scrap public, high-profile ceremonies certifying election results at state capitols.

Election officials across the country have also increased security at polling places, including by increasing police presence and providing poll workers with bulletproof vests. In Maricopa County, Arizona, a tabulation center will have rooftop snipers, drones flying overhead, and security cameras and floodlights to help police monitor the area, officials told NBC News.

The Department of Homeland Security has designated the Jan. 6 session of Congress where lawmakers will certify the president's election as a “national special security event.” This puts it on the same level of security as major events such as the Super Bowl or the annual General Assembly of the United Nations.

“Federal authorities are well prepared for an iconic attack in Washington,” Figliuzzi said.

Unlike the last presidential election, the risk of violence in a state capital or county seat is likely to be higher than in Washington, he said.

“I see the soft targets in danger,” he said. “I see local, regional and state institutions being threatened. That’s the crux of the matter, and frankly that might be the weakest link.”

Meanwhile, Trump continues to spread the falsehood that Democrats have plans to change the election results.

That move failed four years ago, and some of those who joined in the scheme — including Trump supporters who signed fake voter lists on his behalf — were prosecuted.

“People didn’t take part last time. State officials resisted. State legislators resisted,” said UCLA’s Hasen. “And of course some of the people involved have been charged with crimes. So that must have a deterrent effect for some people.”

What is Trump's best option for returning to power, given the legal and political hurdles facing any attempt to reject and overturn the election results? Win the election in a legal and legitimate way, Hasen said.