‘Failed to fix it’: United States poised to repeat mistakes that almost derailed 2020 election

America’s last presidential election led to months of bitter controversy. Some parts of the country have changed their rules. Others haven’t.

Months of bitter controversy followed the United States’ presidential election in 2020, with the losing candidate, then-president Donald Trump, refusing to accept his defeat.

His efforts to overturn Joe Biden’s victory culminated, after dozens of fruitless court cases, in a last-ditch attempt to prevent Congress from formally counting the electoral votes on January 6, 2021.

Understandably, the fallout from that day largely focused on the Capitol riot, during which thousands of Mr Trump’s supporters attacked police and stormed America’s equivalent of our parliament. Hundreds of the rioters were later charged with criminal offences.

Mr Trump’s supporters fighting with overwhelmed police outside the US Capitol. Picture: Roberto Schmidt/AFP

They eventually broke through the police lines and swarmed the building. Picture: Samuel Corum/Getty Images/AFP

A gallows set up outside the building. Some rioters could be heard chanting “hang Mike Pence”, a reference to Mr Trump’s vice president, who had refused to throw out the election results. Picture: Andrew Caballero-Reynolds/AFP

But the violence of January 6 was just one part of the post-election chaos.

As Mr Trump’s supporters swarmed law enforcement outside the Capitol Building, inside its chambers, politicians were plotting to accomplish his goal. The plan among a minority of the elected Republicans in both the House of Representatives and the Senate was to object to results from key states, and thus engineer a way for Mr Trump to remain president.

That they would even consider such a drastic course of action, and that so many ordinary Americans genuinely believed Mr Trump’s evidence-free assertions that the election had been stolen from him through massive fraud, spoke to weaknesses in the US electoral system.

As we draw closer to the 2024 election between Mr Trump and Vice President Kamala Harris, a disquieting question lingers: could it happen again? Could a similar plot to toss out millions of votes actually succeed? Or have the vulnerabilities been fixed?

You shan’t be surprised to learn that the answer is complicated.

How the system works

Margaret Hoover, a conservative political commentator and strategist (and, as a fun piece of trivia, the great-granddaughter of former president Herbert Hoover), is host of the show Firing Line on PBS. She’s also one of those fairly rare political beasts in today’s United States: a Republican who uncompromisingly opposes Mr Trump.

She recently threw herself into an investigation of the American electoral system, producing an hour-long documentary called Counting the Vote.

It explores the important changes that have been made – or in some cases, not made – at both the state and federal levels, since the 2020 election, to protect the integrity of America’s future presidential contests.

Margaret Hoover introducing the documentary. Picture: Firing Line with Margaret Hoover

Before we dive into the details, a quick refresher on the basics.

We think of each US presidential election as one big nationwide vote. It is, in fact, a combination of 50 separate statewide votes, all with their own rules.

Whoever wins the popular vote in each state (with a couple of unnecessarily complicated exceptions) gets all its electoral votes, which are calculated based on a combination of its two senators plus its total number of congressional districts.

So, my old home state Missouri, for example, has eight congressional districts. Add its two senators, and it ends up with 10 electoral votes. Whoever wins Missouri (it will be Mr Trump) gets all 10 of them.

To become president, you need to reach the winning threshold of 270 electoral votes.

The thing is, a vast majority of the states are either solidly Republican or solidly Democratic; only a handful could vote for either candidate.

Ms Harris is definitely going to win Vermont. Mr Trump is definitely going to win Montana. But either of them could win Michigan.

That’s why election coverage always focuses, almost exclusively, on the small number of swing states. And it’s why Ms Hoover spent her time, for the documentary, looking at the rules in those specific states.

“If it’s close in any of these battleground states, then we’re going to have a series of unfolding dramas, that we need to be prepared for,” Ms Hoover explained on The Bulwark Podcast over the weekend.

“That was the impetus for my documentary. Because I could see all these states that had all these counting problems (in 2020). And some of them fixed it. But some of them didn’t. And they had four years. And the ones that didn’t fix it, shame on them, but we need to know.”

This year's electoral map. Realistically, only the states coloured neither blue nor red are in play for both sides; they will decide the next president. Picture: 270toWin

‘Didn’t have the courage’

The starting point, here, is The Electoral Count Reform and Presidential Transition Improvement Act, passed by Congress in 2022. In Ms Hoover’s words, it will “prevent Kamala Harris from being in the position Mike Pence was in” last time around.

Ms Harris, as Vice President, is also President of the Senate. Which means, whatever the result on November 5, she will preside over the electoral vote count during a joint session of Congress next January. She’ll either be certifying her own victory, or her own defeat.

In 2020 and 2021, Mr Trump falsely claimed his vice president, Mr Pence, had the power to reject the results from certain states. Mr Pence refused to go along with the plan – hence the chants of “hang Mike Pence” from some of the Trump supporters who stormed the Capitol, and the rather unedifying sight of gallows being erected outside the building.

“Mike Pence didn’t have the courage to do what should have been done to protect our country and our constitution,” Mr Trump tweeted amid the January 6 riot, as his supporters roamed the halls of the Capitol, actively searching for Mr Pence.

Donald Trump’s vice president, Mike Pence, presiding over the joint session of Congress convened to count the electoral votes on January 6, 2021. Picture: Saul Loeb/AFP

The law passed in 2022 removes all ambiguity, and makes it harder for individual members of the House or Senate to derail the electoral vote count.

If Mr Trump’s view, regarding the count in 2021, were to be applied in 2025, Ms Harris could unilaterally reject the results from states that voted against her. That has been clarified.

“They’ve clarified that her role is totally ministerial,” Ms Hoover said of Ms Harris.

“Completely ministerial. That’s it. She can’t send a slate of electors back.”

In addition, the previous rule that only required a single objector in the House, plus a single objector in the Senate, to create trouble for the vote count has now been changed. To stop the count, you now need 20 per cent support in both chambers – a much taller ask.

The ‘red mirage’

At state level, the 2020 election was complicated by the coronavirus pandemic, which led to a significant increase in the number of people who chose to vote by mail. That, in turn, created more delays than usual in the vote count.

Some states start the task of processing their early and mail-in ballots before election day itself. Others wait, strictly, until the polls have closed.

Ms Hoover speaking to The Bulwark.

And the host who interviewed her, Tim Miller.

The result, last time, was something election experts labelled a “red mirage” – Mr Trump surged out to an early lead in some key swing states, as the votes cast on election day itself (which tend to favour the Republicans) were counted first.

Then, gradually, as the early and mail-in votes were counted, Joe Biden caught up to him.

Mr Trump used that asymmetry in the vote count across multiple states to claim he’d been the victim of widespread fraud. He actually claimed victory on election night, while still ahead in states like Pennsylvania and Wisconsin, before the districts that were expected to favour his opponent had been tallied.

“The breakdown was, really, because it was Covid, because there were all these absentee ballots, because the states didn’t have the capacity to process them quickly, Trump leveraged those hours of uncertainty,” said Ms Hoover.

“So I went, state by state, to see who had tightened up their voting systems, to make it better, so that doesn’t happen again. So one side can’t say the election was stolen, or cast doubts, or foment these conspiracy theories.

“The key is pre-processing. You’re going to get a tonne of absentee ballots.

“Michigan has reformed since 2020. Georgia has reformed since 2020.

“But Arizona and North Carolina could be tricky. Pennsylvania is going to be tricky.

“(Pennsylvania) had a couple of bills come up through the legislature and, frankly, they didn’t get it done.

“Wisconsin also failed to fix it. What ‘fix it’ means, in this scenario, is really passing a pre-processing law.

“The pre-processing doesn’t mean it’s tabulated. They haven’t actually counted the votes. They have prepared them to be counted.

“The pre-processing is literally just open the ballot, verify the signature, let the voter know that you have their ballot. It’s laborious and tedious and it takes a really long time. You can get all that done before election day.”

Pre-processing is already done in 38 of the 50 US states. It just happens to still be controversial in a handful of the states that matter.

So, to summarise: Kamala Harris, as Vice President, no longer has even a whiff of the power required to overturn her own election defeat, should that happen. And it’s much harder than it was before for members of Congress to derail the electoral vote count.

But, some of the swing states have done nothing to fix the slow counting process that helped foment so many conspiracy theories in 2020.

If this election comes down to the result in Pennsylvania, or Arizona, or North Carolina, or Wisconsin, we might still be waiting days for the verdict. And that delay is where doubt can so easily grow.

Originally published as ‘Failed to fix it’: United States poised to repeat mistakes that almost derailed 2020 election