Since Donald Trump first claimed that he won the U.S. presidential election in 2020, the idea has spread among millions of his supporters. It motivated a chaotic and violent attack on the U.S. Capital in 2021, and it holds still today—with two-thirds of Republican voters and nearly three in 10 Americans. The idea is that the 2020 election was “stolen,” through phony voters, rigged voting machines, and corrupt election officials and judges.
While there’s no evidence supporting this idea, and an abundance of evidence to the contrary, Trump’s supporters don’t trust these conclusions, believing they’re based on a coordinated campaign of lies and manipulation. Independent election officials, and one high-profile court case after another, however, have affirmed it—now to the considerable expense of Trump, a number of his associates, and even Fox News, which had to pay US$787.5 million in a settlement with Dominion Voting Systems for claiming their machines had been rigged.
And yet Trump is now alleging that the Democrats plan to steal the coming election, too. Democrats, meanwhile—who recall Trump’s own efforts to interfere with the 2020 election—worry that he could potentially steal next week’s election, himself. In the last two weeks alone, The New York Times has run a series of articles titled, “In case of an election crisis, this is what you need to know,” “What to know about the looming election certification crisis,” and “The army of election officials ready to reject the vote.” Earlier this week, someone seems to have burnt ballot boxes in Washington and Oregon, damaging hundreds of votes. How vulnerable is the U.S., then, to a presidential election being stolen?
Richard H. Pildes is a professor of law at New York University. Pildes says that if the election is close, there’ll likely be partisan attempts to affect the outcome—but the safeguards in the American electoral system make that a daunting challenge, if not effectively impossible. The U.S. election system does have some vulnerabilities. But they’re not, Pildes says, where the real risk to the legitimacy of the election is; the real risk to the legitimacy of the election is in the social reality that so many people, Republicans and Democrats, are now so ready to believe that it could be stolen …
Gustav Jönsson: Theoretically, what would be the main points of vulnerability in America’s election system?
Richard H. Pildes: The first thing to know is that the United States has an extremely decentralized election system, even for national elections. Unlike in a lot of other democracies, there’s not a single, professionalized, central body in the U.S. that oversees and administers the presidential election process. In fact, there are about 10,000 jurisdictions.
That creates creates a kind of security, but it also creates many possible points of vulnerability, which could be exploited by partisan actors. So one concern is that local officials—county officials, perhaps, or even officials at the state level—might try something shady.
There’s some concern, too, about the role state legislatures might play in an election process—that they might somehow try to intervene, maybe by making spurious claims of election fraud. The last stage of the process, when Congress receives the electoral votes from the states, is possibly vulnerable, as well, because Congress is an elected institution, composed of partisans—the worry there being that the majority party in Congress might try to manipulate the reporting from the states. And some people are concerned about the courts: If they get involved in the process, they mightn’t be faithful to the law but instead be influenced by partisan considerations.
There’s not a single, professionalized, central body in the U.S. that oversees and administers the presidential election process. In fact, there are about 10,000 jurisdictions. That creates creates a kind of security, but it also creates many possible points of vulnerability, which could be exploited.
Jönsson: From your perspective, where might any actual vulnerabilities be?
Pildes: There could be significant delays in counting the votes, which might in turn lead to a situation that’s even more explosive than what followed the 2020 election. So many people are now primed to believe that something suspicious is going on—especially if the projections change during election night or over several days. That could certainly lead to a situation that’s very open for exploitation.
And this year, I think it is likely to take some time before we know who won, especially if the outcome turns on just a couple of states. Most people who analyze American elections predict Wisconsin and Pennsylvania will be critical this year—and unfortunately, those states have, in my view, very poor election-administration policies. Which means it’ll likely take them longer than other states to get to a final count. So these places could become focal points for suspicion, mobilization, unrest—maybe even for efforts to stop the vote-counting process.
Jönsson: Millions of Americans, including people who attacked the U.S. Capitol in January 2021, believed the November 2020 election had been stolen. How exactly do they think that happened?
Pildes: Some believe ineligible voters committed fraud by mailing in illegitimate ballots. The 2020 election happened during the pandemic—but before vaccines were available—so the election system faced exceptional pressures that year. Election officials made a lot of provisions to allow people to vote without putting themselves at physical risk. For instance, they made it easier to vote by mail; there were more days of early in-person voting to reduce crowding at election stations; and in some counties, you could pull up and vote from your car.
Many of these changes to the U.S. election process were implemented only shortly before the election, which fed suspicions and rumors. It was just all so unfamiliar to most people. In a state like, say, Pennsylvania, around 5 percent had traditionally voted absentee, but in 2020, around 40 percent did. And there are always more issues with absentee ballots compared to in-person voting—procedural hurdles, for example, that voters have to get over to vote by mail—and these can make the counting process much slower. Particularly in a state like Pennsylvania, where election officials aren’t permitted to start processing absentee ballots until election day, even if the ballots come in weeks earlier.
Jönsson: What would be the evidence that ineligible people voted in significant numbers in 2020 on account of these changes?
Pildes: There isn’t any. Still, when leading political figures, trusted by their supporters, make the claim that something nefarious has happened, a lot of people believe it. It’s understandable. And it’s why there’s still a significant percentage of Republican Party voters who believe the 2020 election was rigged or stolen, or otherwise unfair. They’re wrong on the facts—but even so, it’s a problem a democratic society has to face when that many people believe they haven’t got free or fair elections.
Jönsson: Those who do believe the 2020 election was stolen tend to believe it deeply and passionately. It’s not a casual cynicism.
Pildes: It’s true. And it’s because trust in institutions has fallen so far—not just in the United States but across democratic societies.
There’s still a significant percentage of Republican Party voters who believe the 2020 election was rigged or stolen, or otherwise unfair. They’re wrong on the facts—but even so, it’s a problem a democratic society has to face when that many people believe they haven’t got free or fair elections.
People have become much more suspicious of political leaders, apart from the ones they like. That’s not a right-wing issue; it’s a societal issue. Today, few sources of authority are widely accepted throughout American political culture. So millions and millions of people live in separate epistemic silos—bubbles, as we say. There’s meanwhile a very pervasive idea that you have to do your own research, even about things you’re not really in a position to research—or ultimately, to understand effectively on your own. I’d say all the suspicions toward the U.S. election process reflect a trend of suspicion toward traditional authorities generally.
Jönsson: The trust problem isn’t a right-wing issue, as you say. There are Democrats and people on the left who now worry that Republicans will conspire to steal or otherwise undermine this year’s election. How do you understand those fears, exactly?
Pildes: One worry is that local officials—people who have only a formal role in the process and should just report the tabulation of the vote—will think something nefarious is going on, maybe some kind of fraud, and refuse to send the vote totals to the next level of the election system. Honestly, I think that may in fact happen in some places—but the system will most likely respond to these cases fairly effectively. There are ways of dealing with recalcitrant local officials who refuse to perform their legal obligations. The courts come into the picture.
In the abstract, there are also worries that some governors may convince themselves—for partisan reasons—that the election wasn’t fair. But in recent elections, most candidates who ran for governor while claiming the 2020 election was rigged—they were defeated. In fact, in the critical states, there aren’t any governors who’ve denied the legitimacy of the 2020 election. So I’d say that risk isn’t likely to materialize either. Should it happen, though?—there are still mechanisms in federal law for the courts to deal with it.
Then there are worries that Congress might try to throw the election outcome to one of the candidates by refusing to accept the votes from one or more states—rather like what happened on January 6, 2021, when some members of Congress’s lower and upper chambers, the House of Representatives and the Senate, raised objections to receiving the votes from certain states. But the way the rules work, it would take a majority of both the House and the Senate to refuse to accept the votes. So that means the same political party would have to be in control of the House and the Senate after the elections this fall. Which may or may not happen—but if not, that risk is taken off the table.
There’s a very pervasive idea that you have to do your own research, even about things you’re not really in a position to research—or ultimately, to understand effectively on your own. I’d say all the suspicions toward the U.S. election process reflect a trend of suspicion toward traditional authorities generally.
Another thing to note: After the 2020 presidential election, Congress passed—I’ll note, with very strong support in both parties—an updated version of the Electoral Count Act, the statute that regulates Congress’s role in counting the votes. The Electoral Count Act confirms that Congress is not supposed to second-guess the voting processes in the states. As long as Congress adheres to that statute, it won’t throw out votes, even if one party were to have control of both chambers. And it would be extraordinary for Congress to try it. That would deprive everyone in the state in question of their vote. And Congress hasn’t ever rejected the votes of a state since the first Electoral Count Act was passed—in 1887.
If the election is close—if it ends up hinging on a few states—will there be significant efforts to try to affect the outcome? Yes, I think so. But I also think these safeguards—inherited from and refined by the work of American legislators over time—will see to it that the lawful winner of the election becomes the next U.S. president.
Jönsson: As you say, popular belief in the insecurity of the U.S. election system might seem to be a bigger problem for American democracy than any actual insecurity. How do you think Americans could address that problem?
Pildes: Regardless of whether the election is secure, if a significant ratio of Americans just lack confidence in the integrity of the process, that’s a profound problem. I can say, there’ve been a lot of good efforts to address it ahead of this year’s election. Across the United States, election officials have opened up their processes to give citizens more of a window into them; they’ve been very willing to explain how the electoral system works; and there will likely be more transparency in the counting process itself—with both parties having election observers at voting stations.
I know, in some cases, none of this will matter; some people will still be convinced that there’s something corrupt happening in the system. But election administrators have made big efforts to help people see and understand the process better. It shows a lot; it should mean a lot.
It occurs to me, though: There’s a fine line between, on the one hand, trying to ensure measures are in place to protect the election system from being manipulated and, on the other, worrying so much that it saps people’s confidence in the process—to the point where it might even discourage them from voting. In any democracy, no one should be shy about identifying real concerns with an election system—but everyone should be responsible about understanding and acknowledging the strong safeguards Americans have built into theirs.