‘The threat remains’: Trump’s path to overturning a 2024 defeat

Four years ago, a sitting president — rejected by American voters — attempted to seize a second term anyway, plunging the nation into confusion, conflict and, in its last gasp, violence.

Now, Donald Trump’s political comeback has revived a sense of dread among the officials and institutions who stood in his way last time: Could it happen again?

Dozens of interviews with people deeply familiar or involved with the election process point to a clear consensus: Not only could Trump make a second attempt at overturning an election he loses, he and his allies are already laying the groundwork.

“The threat remains,” said Tim Heaphy, who led the investigation into Trump’s election subversion efforts for the House’s Jan. 6 select committee.

2024 is not 2020. Trump’s path to pulling it off this time is even narrower and more extreme. For one thing, Trump lacks some of the tools he threatened to wield four years ago to upend the transfer of power; today, the military and Justice Department answer to Joe Biden. Trump also needs allies to win elections that would put them in a position to reverse a defeat: Overturning a Kamala Harris victory would require an enormous amount of help from Republican power brokers in statehouses and Congress, some of whom spurned him four years ago.

Trump’s first attempt to exploit the neglected machinery of American democracy also spurred real action by congressional Democrats. Updates to the Electoral Count Act in the wake of Trump’s 2020 gambit aimed to bind vote counters, election officials and even Congress to the results certified by state governments, all of which makes it tougher, in theory, to steal an election.

But Trump is heading into the 2024 election informed by his failure to overturn the results four years earlier. And his incentive to obtain the powers and protections of the White House is likely stronger than ever: If he loses, Trump will face an avalanche of criminal proceedings that could last the rest of his life. If he wins, they are likely to go away.

“No one knows exactly what Trump’s attack on the electoral system will be in 2024,” said Rep. Jamie Raskin (D-Md.), a member of the Jan. 6 select committee. “What will he do this time?”

The answer, according to lawmakers, congressional investigators, party operatives, election officials and constitutional law experts, goes something like this:

— He will deepen distrust in the election results by making unsupported or hyperbolic claims of widespread voter fraud and mounting longshot lawsuits challenging enough ballots to flip the outcome in key states.

— He will lean on friendly county and state officials to resist certifying election results — a futile errand that would nevertheless fuel a campaign to put pressure on elected Republican legislators in statehouses and Congress.

— He will call on allies in GOP-controlled swing-state legislatures to appoint “alternate” presidential electors.

— He will rely on congressional Republicans to endorse these alternate electors — or at least reject Democratic electors — when they convene to certify the outcome.

— He will try to ensure Harris is denied 270 votes in the Electoral College, sending the election to the House, where Republicans are likely to have the numbers to choose Trump as the next president.

Some of the necessary ingredients for this extraordinary campaign are in place. Trump has already embarked on a clear mission to stoke as much uncertainty as possible about the results of the election. He claims that the only way he can lose to Harris is if Democrats cheat — despite no evidence that any significant fraud occurred in 2020 or is underway in 2024. Dutiful allies have amplified these messages. And many of the officials who stood in Trump’s path four years ago have been ousted or retired, ceding power to more compliant Trump-aligned successors. Meanwhile, threats against election officials and growing fears of civil unrest have intensified — potentially at polling places, ballot counting facilities and Electoral College ceremonies — which Trump detractors worry could bolster any election subversion campaign.

Trump allies say the former president is singularly focused on winning the election outright and has not personally engaged in the war-gaming scenarios he might look to if Harris wins. The Trump campaign declined repeated requests for comment about Trump’s plans for the post-election period and whether he has deputized allies to consider all contingencies. Meanwhile, Trump refused again this week to publicly say he would back a peaceful transfer of power.

It’s possible Trump and his allies won’t make a sustained effort to overturn his election defeat. An overwhelming Harris victory would make it harder for Trump to rally Republicans to his side. (If Trump wins, no one expects a comparable effort by Democrats to subvert the election.) But to a person, election observers, elected leaders and some of Trump’s own allies agree on one operating premise: On election night, no matter what the results show, how many votes remain uncounted and how many advisers tell him otherwise, Donald Trump will declare himself the winner.

And from there, he could embark on a risky but plausible challenge to overturn the legitimate election results and install himself in the White House. Here’s how it could happen.

Nov. 5, 2024 – Dec. 11, 2024

Sowing distrust about the results and ramping up pressure during state certification

Breeding Distrust

What Trump will do first is what he’s already doing: stoking deep, unfounded doubts about the integrity of the election. Trump has spent weeks promoting unsupported claims of mass voter fraud by Democrats, suggesting they’re illegally registering thousands of non-citizens to vote and soliciting unlawful votes from foreigners. He’s also raised doubts about the Postal Service’s ability to process mail ballots, even as he’s worked to reverse Democrats’ edge in the format.

“They are getting ready to CHEAT!” Trump blared in a Sept. 23 Truth Social post.

Trump’s GOP allies in Congress and the states have echoed the claims — and they’ve received the loud support of X CEO Elon Musk, who has broadcast rumors and conspiracy theories to his 200 million followers.

Their doubts have largely drowned out claims by some Republican leaders — including at the RNC — who insist this election is more secure because of their years-long steps to litigate ballot access issues and train poll workers.

Trump’s adversaries and independent election experts say his goal isn’t to correct fraud — the claims simply aren’t true — but rather to soften the terrain for radical efforts to resist the results as they move through the long and byzantine process that leads to Inauguration Day on Jan. 20, 2025.

“I think they are sowing doubt. They have been sowing doubt and preparing the ground for an outcome they are not happy with and then finding an easy scapegoat to blame,” said Arizona State Sen. Priya Sundareshan, a Democrat from a Tucson-based seat.

At a recent event Michigan Secretary of State Jocelyn Benson, a Democrat, described Trump’s allegations about noncitizen voters as a “myth” but said “seeds are being planted” that could fuel post-election challenges.

Already, polling shows that Republicans, at sharply higher rates than Democrats and independents, lack faith that the vote tally in the 2024 election will be accurate.

Pressuring County and State Election Boards

That partisan disparity is the backdrop for the next phase of the process: county and state proceedings to finalize the results of the election.

This process is one of the first checks on the accuracy of the election — and it’s decentralized by design, with each state setting its own procedures and deadlines, and county officials running initial counts. Once counties and states complete this process, governors send the certified results to Congress, indicating which candidate should receive their states’ Electoral College votes.

In 2020, Trump leaned on state and county election officials, pressuring them to refuse to certify the results. He personally called officials in Arizona, Georgia and Michigan but made little headway.

Since that failed attempt, Trump allies have won seats on county and state election boards across the swing states likely to decide the 2024 contest. He recently identified by name three members of the Georgia State Elections Board at a rally, calling them “pitbulls” fighting for his “victory.” (In recent weeks, the board adopted a slew of changes to election procedures that state officials warned could wreak havoc on the counting of votes on Election Day, including requiring poll workers to hand-count ballots within hours of the polls closing. Democrats are suing to block some of those policies, and earlier this week, a state judge struck down the changes as unconstitutional.)

In this new atmosphere, it’s easy to envision a perilous scenario:

A key swing state takes several days to finish counting votes. Harris edges Trump by a few thousand ballots, appearing to clinch the election. Trump then blankets the state with ads exhorting officials to “stop the steal,” sends top allies to rail daily outside counting facilities about a crooked process, files a blizzard of litigation urging judges to throw out ballots being counted after Election Day and spreads claims that the vote was swung by non-citizens. Threats rain down on election officials and vote counters, with protests driving up the local and national temperature. Then, Trump allies on a handful of county election boards resist certification, threatening to disenfranchise thousands of voters and disrupt the state’s effort to finalize an accurate count.

That alone won’t overturn legitimate election results. Election officials have been contemplating scenarios like this for years and say rogue county and state boards will not be able to prevent certification.

“We would immediately take them to court,” Pennsylvania’s Secretary of State Al Schmidt said at a recent election-related event in Michigan.

In fact, in every swing state, election officials can go to court to force rebellious county officials to certify the results. (Most swing states require counties to certify the results by late November, and all states must send their certified results to Washington by Dec. 11, a deadline set by federal law.) Several secretaries of state, including Georgia’s Brad Raffensperger, have said this option would ultimately compel recalcitrant county boards to act. And a judge in the state recently ruled that certification by county and state boards is mandatory.

But in 2024, noise may be all Trump needs.

If Trump-friendly local officials are stymied in their efforts to impede unfavorable election results, it would become an immediate rallying cry to the same “Stop the Steal” forces who mobilized for Trump in 2020. That, in turn, would drive up pressure and fear among the Republican state and federal lawmakers who govern the next phases of the process.

“Those seeking to wreak havoc with respect to the 2024 election are way ahead of where they were in 2020 in terms of laying the groundwork for and widespread dissemination of the theories and talking points and lies they will use to challenge the results of the election,” said Marc Harris, former senior investigative counsel to the Jan. 6 committee.

The Role of Lawsuits

Ahead of the election, both parties have been jockeying in dozens of lawsuits across the country seeking every possible advantage in the intricate processes of casting and counting votes. These more-traditional battles over the contours of the voting process could determine whether entire categories of votes will be counted in states that could be decided by just a few thousand. Both parties have marshaled their fiercest litigators.

But in the event of a Trump defeat, another category of lawsuits is likely to emerge. In 2020, as the Trump campaign’s lawsuits failed or stalled, he increasingly pinned his hopes on fringe lawyers who mounted improbable, easily refuted claims of fraud — a bid to keep his election hopes alive months after Election Day.

In those cases, the points won or lost in the courtroom are beside the point. In 2020, as courts turned aside Trump and his allies’ litany of lawsuits, they became fuel for his attacks on the legal system and traditional processes for resolving disputes, further evidence for his supporters that the only path to power was through statehouses and Congress.

Convincing Republican-led state legislatures to appoint alternate electors to send to Congress

With election officials having certified the results and courts unlikely to provide relief, Trump’s battle will quickly move to Republican-led state legislatures.

Republicans control both chambers in Arizona, Georgia, North Carolina and Wisconsin. Pennsylvania’s legislature is split, but both chambers are in play this November — and new members take their seats on Dec. 1, right in the middle of the transfer of power. All told, those states control 72 electoral votes, more than the margin of all but one election since 2000 — and almost certainly enough to tip the scales in 2024.

The Constitution empowers state legislatures to deliver the electoral votes for their state in whatever manner they choose. And every swing state has, by law, chosen to designate their presidential electors according to the results of the statewide popular vote.

In 2020, however, some Trump allies argued that legislatures have unilateral, incontestable power to change their minds — and could simply claim lack of faith in the results to snatch the decision back for themselves. Conservative attorneys like John Eastman and Kenneth Chesebro, who have both been criminally charged for their roles in the 2020 election process, developed this theory and lobbied for such an outcome. Under their theories, state legislatures would send their own competing slate of electors to Congress — alongside the slates submitted by governors — and urge Congress to choose between them. Trump increasingly leaned on these fringe ideas as his traditional routes to power began to close.

At the time, Republican-led legislatures in six swing states rebuffed Trump’s entreaties, though some showed signs of softening after weeks of pressure. Some of the leaders who resisted him — like Arizona’s then-House Speaker Rusty Bowers — are no longer in office.

In hindsight, the resistance of Republican state legislators may have been the most significant bulwark against Trump’s bid to subvert the election in 2020. After they balked, the Trump campaign assembled informal slates of electors and had them sign paperwork claiming to be the legitimate slate.

Then-Vice President Mike Pence, who presided over Congress’ counting of electoral votes on Jan. 6, 2021, refused to consider those fake slates of electors because they hadn’t been endorsed by a government authority. But a little-noticed memo sent by Pence’s top legal adviser suggested Pence’s choice might have been different — in fact, it may have had to be — if legislatures had endorsed the pro-Trump slates.

“A reasonable argument might further be made that when resolving a dispute between competing electoral slates, Article II, Section 1 of the Constitution places a firm thumb on the scale on the side of the State legislature,” Pence’s top legal adviser Greg Jacob wrote in the Jan. 5, 2021, memo.

For now, Trump and his allies aren’t telegraphing their plans. Republican legislative leaders in the states did not respond to requests for comment about whether they’ve had any contact with Trump, his lawyers, the RNC or state parties about these scenarios. The Trump campaign declined to comment. RNC Co-Chair Michael Whatley said at a recent event in New Hampshire that the party had not considered whether alternate slates of electors are on the table in 2024: “We haven’t had any discussions like that.”

This year, if Republican-led legislatures appoint alternate electors, then pro-Trump slates could move ahead to Congress alongside the pro-Harris slates approved by governors. (Five of the seven swing states have Democratic governors. And in a sixth state, Georgia, Republican Gov. Brian Kemp resisted Trump’s efforts to overturn the state’s results in 2020.)

That would be a direct challenge to the post-Jan. 6 effort intended to prevent this kind of constitutional clash. In 2022, Biden and Congress passed a law reforming the Electoral Count Act of 1887, intended to clarify that only governors — not legislatures — are empowered to send certified slates of electors to Congress, unless a court steps in to override the results. Harris has pledged that when she presides over the counting of presidential electors on Jan. 6, 2025, she will follow this law. But if any legislatures send her an alternate slate, there is an open constitutional question as to whether she must also offer it to Congress for consideration. What Congress would do with the slates backed by legislatures is equally uncertain, but their very existence would cast a cloud over the proceedings and, like everything else, fit neatly into a Trump pressure campaign.

Eastman, who had his law license suspended because of his role in the last election, told POLITICO that the theory he espoused in 2020 remains viable — and perhaps has even been strengthened — by the legal battles and law changes of the last four years. He has long argued that when it comes to the Electoral College process, state legislatures cannot be bound by federal law, since the U.S. Constitution grants them “plenary” — absolute — authority to choose electors. He says the law enacted by Biden actually makes the Electoral Count Act “more unconstitutional, not less.”

“The Article II power remains what it was (and could never have been restricted by statute, in any event),” Eastman said in an email. Whether any GOP congressional leaders agree with him on Jan. 6, 2025, will determine whether Trump can make a last-ditch effort to reverse the outcome.

One significant shift from 2020: Without the backing of legislatures, don’t expect groups of pro-Trump “fake” electors to convene in states where Harris is the certified winner. Dozens faced criminal charges for signing fraudulent certificates, and those who orchestrated the effort have been investigated and charged in multiple states.

Some state parties are openly wary of being roped into another legal morass over electors. Wisconsin Republicans, for example, preemptively signaled at an Oct. 1 news conference that the party doesn’t intend to use its electors unless Trump and Vance are the certified winners.

“If J.D. Vance and Donald Trump win the most votes in the state of Wisconsin, then our electors will be convening on December 17,” Wisconsin GOP spokesperson Matt Fisher told POLITICO. “But if Kamala Harris and Tim Walz, or by some miracle a third-party ticket wins, then our list of electors will be irrelevant and have no purpose.”

Of course, it’s easier to stake out such a position now before the votes are tallied and before Trump launches any pressure campaign against state Republicans.

Presidential electors meet in an atmosphere of threats

Once governors have delivered their certified election results to Congress, the next task is for presidential electors for the winning candidate — and perhaps those certified by GOP state legislatures — to meet and cast ballots that will also be sent to federal lawmakers. Here, the prospect of disruption, and even violence, is at its peak.

These constitutionally mandated proceedings were once sleepy, boilerplate affairs, with party loyalists or political celebrities rewarded with a chance to cast a symbolic ballot to be recorded in the history books.

This year is likely to be different — especially if two slates of electors have teed up a potential conflict for Congress to resolve on Jan. 6, 2025.

State election officials across the country say they are already bracing for the possibility of unruly protests and violence at every phase of the election process — but especially when it’s time for the electors to meet. Given the tight deadlines set out in state and federal law to finalize and deliver election results, disruptions that cause state officials or electors to miss key steps in the process could cast a cloud over the results.

“Regrettably, we have had to focus more on security this year than ever before,” said Steve Simon, Minnesota’s Democratic secretary of state. Simon said the state has previously hosted the Electoral College in the rotunda of the state capitol but organizing it in an open public space this year is “just not practical today, given this environment.”

Civil unrest could have a direct impact on election procedures before Dec. 17 as well. Special counsel Jack Smith’s evidence against Trump included a text conversation between an unnamed Trump campaign aide and an ally inside a Detroit ballot-counting facility. The campaign aide, described as one of Trump’s alleged co-conspirators, encouraged the other to “make them riot” after he was told the scene was a tinderbox. This year, law enforcement at all levels have described unprecedented levels of threats targeting every phase of the process. These days, the Justice Department routinely announces arrests of people sending vile messages to lawmakers, election officials and judges.

“Anybody involved in certifying Trump’s defeat should he lose is a potential target,” said Tom Joscelyn, a senior adviser to the Jan. 6 committee. “The extremists or even just rabid wackadoodles firmly believe it’s being stolen yet again.” (Political violence can cut both ways of course. In July, Trump was the target of an attempted assassination in Butler, Pennsylvania. Last month, another potential assassin was arrested with a loaded rifle outside of Trump’s Florida golf course.)

“The thing that’s going to be bad is the thing we’re not thinking of,” said Gabe Sterling, the chief operating officer in the Georgia Secretary of State’s Office. Sterling said his biggest concern was a lone wolf who had been “radicalized by disinformation on the left or right.”

Persuading a GOP-led Congress to endorse Trump’s electors and spurn Harris’ set

If Trump attempts to reverse a defeat at the polls, he will need the GOP to retain, and perhaps even expand, its narrow hold on the House of Representatives. Without it, any effort to flip the outcome will effectively be dead the moment states send their certified results to Washington.

That’s because all roads lead to Jan. 6, 2025, the day the House and Senate must fulfill their constitutional requirement to meet jointly and count the votes cast by the Electoral College — and just three days after the newly elected Congress takes office.

In 2020, Democrats and then-Speaker Nancy Pelosi controlled the House, so Trump pinned his hope to subvert the election on the fact that Pence would be presiding over the joint session of Congress. Eastman, Chesebro and others had helped develop a theory that Pence could unilaterally refuse to count Biden’s votes, either delivering the election to Trump or forcing a delay that might give Republican state legislators more time to appoint pro-Trump electors.

Pence spent weeks refusing to declare his intentions but ultimately resisted, and Trump supporters rioted at the Capitol.

This time, the person presiding over the proceeding will be Harris herself — and she has pledged to adhere to the Electoral Count Act’s description of her duties as “ministerial,” with no room to exercise power over the outcome.

Under the Electoral Count Act, Congress convenes in the House chamber at 1 p.m. with Harris presiding. With the assistance of House and Senate “tellers,” the vice president then opens envelopes containing the certified electoral ballots from each state alphabetically and tallies the votes. If there are no objections, a winner is announced.

In previous years, a single member of the House and Senate could join together to challenge the electors certified by any state, forcing the session to recess for a two-hour debate and vote on whether to count the challenged electors. The updated Electoral Count Act raised that threshold to one-fifth of each chamber — 87 House members and 20 senators. Still, it may not be hard for a group of pro-Trump Republicans to reach those thresholds. The law also requires both chambers to agree to an objection for it to succeed — though a split Congress would present messy constitutional questions. No challenge under this process has ever succeeded.

Even if they manage to mount challenges, Republicans will not have a chance at overturning the election results unless they have a majority in the House. In the event of a Democratic House takeover, the House would brush aside challenges to Harris’ electors and, if necessary, shoot down alternate slates.

Likewise, if Democrats hold the Senate, they’ll easily approve the slates of electors for Harris. And even if Republicans narrowly take the upper chamber, at least a few key GOP senators seem certain to resist any effort to depart from the state certified results. Sen. Susan Collins (R-Maine), for example, helped author the Electoral Count Act reforms meant to prevent a repeat of Trump’s 2020 gambit.

But if Republicans retain the House and affirm their grip on key state legislative chambers in the swing states, a slim and dangerous path remains.

Leading up to Jan. 6, Trump and his allies would be engaged in a relentless pressure campaign to convince House GOP lawmakers to block Harris’ victory. The existence of alternate slates of electors sent by Republican-led legislatures would be a tool in their arsenal.

Some Democrats are nervous that even if they narrowly appear to take back the House, enough races could remain locked in recounts or legal protest to ensure that Republicans hold the majority when the new Congress convenes on Jan. 3, 2025.

Though Congress was the target of violence after the 2020 election, federal officials have taken pains to avoid a recurrence. The Biden administration recently labeled the Jan. 6, 2025, session of Congress a “National Security Special Event,” which unlocks resources akin to the Super Bowl or presidential inauguration. Expect the U.S. Capitol to look like a fortress soon after Election Day.

The final move to seize power at the joint session of Congress

The Speaker Maneuvers

Now imagine the House remains in Republican hands. Trump has spent November and December pressuring state legislatures in Wisconsin, Georgia and North Carolina to send alternate slates of electors to Congress. They acquiesce. Those slates are delivered to Harris, but this time they have the backing of a government authority.

Here is where Trump loyalists could try to seize power for their defeated candidate.

It begins with whoever is the speaker of the House. Though Rep. Mike Johnson holds the job today, he’s no lock to win renewed support from his restive Republican conference. Trump would once again likely play kingmaker, with the power to extract promises for his endorsement. In a scenario in which Trump is still challenging the election, a commitment to side with him during the Jan. 6 session of Congress would be at the top of his list.

If Republicans can’t resolve the speaker fight before Jan. 6 — which was nearly the case in 2023, when Kevin McCarthy claimed the gavel after 15 votes and three days of infighting — it would usher in another kind of unprecedented crisis: a leadership vacuum that would complicate the ability of Congress to convene on Jan. 6 altogether. No one knows what would happen in that scenario, but congressional aides and lawyers are beginning to contemplate strategies for even the wildest contingencies.

Now assume Johnson retakes the gavel. Though Harris will preside, the session occurs in Johnson’s chamber, where the speaker holds significant sway.

Johnson has not yet telegraphed how he will handle the joint session. Johnson was a key ally in Trump’s 2020 bid to reverse the election results — including on Jan. 6, 2021, when Johnson backed challenges to Biden’s presidential electors. In recent interviews, the Louisianan has said he intends to “follow the Constitution” and federal law. Left unsaid: whether Johnson’s interpretation of the Constitution would comport with Eastman and Chesebro or with the mainstream legal community. His office has declined repeated requests to clarify his view on the Electoral Count Act and whether he considers it binding on Congress.

If Johnson believes, like Eastman, that the laws governing the joint session are unconstitutional, he could assert unprecedented authority to affect the process — all under the guise of following the Constitution. That could include taking steps to ensure that pro-Trump electors embraced by state legislatures get an up-or-down vote, even if they conflict with slates endorsed by governors. It could include permitting hours of floor time to air theories of voter fraud, while holding the presidency in limbo. It could also include lobbying allies to reject pro-Harris electors in order to prevent either candidate from receiving 270 Electoral College votes. And it could also include simply gaveling the House out of session to prevent the joint session from continuing. Each move would likely trigger intense legal battles, putting the courts — and most likely the Supreme Court — in the position of deciding how to resolve unprecedented power plays by the most prominent actors in government.

This phase would mark the culmination of Trump’s ceaseless campaign to cast doubt on any election defeat and lay the groundwork for an alternative reality. After all, Republicans would say, there’s real uncertainty about the outcomes in the swing states, with millions of voters convinced Trump was the rightful winner — the very uncertainty Trump had been stoking all along.

The House Picks a President

If Republicans, through the speaker’s maneuvering, prevent either candidate from garnering an Electoral College majority, it would trigger what’s known as a contingent election in the House, with each state delegation getting a single vote. Republicans control 26 state delegations to Democrats’ 22, with two others evenly split. The GOP is favored to maintain that advantage, and Republicans would almost certainly choose to elect Trump president.

Democrats are already gaming out these scenarios, with the level of concern dependent on how big Republicans’ margin might be when Congress meets — and whether the GOP ranks include enough moderates willing to buck Trump.

Ultimately, a handful of key pieces would have to fall into place to prevent the certification of a Harris victory: It would require a good election night for Republicans and significant complicity among Trump allies at virtually every level of government.

And it would be a brazen display of power that would outstrip the multifaceted gambit of 2020.

“Then you’re really getting into the realm of lawlessness,” said Rick Hasen, an election law expert at UCLA. “If people are going to be willing to just ignore the law and declare someone the winner, then you’re talking about a real coup.”