By David Morgan and Nathan Layne
WASHINGTON (Reuters) – Pennsylvania and Wisconsin, two states seen as must-wins in the Nov. 5 presidential election, have failed to adopt electoral reforms intended to avoid a repeat of the chaos that followed Republican Donald Trump’s attempts to overturn his 2020 defeat.
Democratic Vice President Kamala Harris and former President Trump are locked in a tight contest in those two states, public opinion polls show. They are the heart of the “Blue Wall” states of America’s former industrial heartland that are likely to play a critical role in either candidate’s path to victory.
Their failure to embrace a 2022 federal law could attract the post-election attention of Trump and his Republican allies, who falsely claim that his loss to Democratic President Joe Biden was the result of widespread fraud and claim without evidence that Democrats are encouraging people living in the United States to vote illegally.
That rhetoric has stirred worries among democracy advocates, lawmakers and legal experts who say the Republican presidential candidate and his supporters could try again to overturn an election loss, this time with a more coherent effort and a strategy aimed at just one or two states.
“Anybody, not just Democrats, but anybody, should be worried that this is going to happen again with even more chaos and violence than happened in 2020 and 2021,” Democratic former U.S. House Majority Leader Dick Gephardt told Reuters.
After Trump’s efforts to overturn his 2020 loss, which included more than 60 lawsuits and culminated in his supporters’ Jan. 6, 2021, attack on the U.S. Capitol, Congress sought to stave off any recurrence by passing the Electoral Count Reform and Presidential Transition Improvement Act.
The reforms set a new mandatory Dec. 11 deadline for states to submit certified slates of presidential electors to the Archivist of the United States, provided expedited court access to resolve challenges and raised the threshold for objecting to election results in Congress.
The Trump campaign did not respond to a request for comment.
Other states expected to play a deciding role in the election have passed legislation to ensure that canvasses, recounts, audits and legal challenges are completed before the new deadline. Arizona, Michigan, Nevada and North Carolina acted after Congress, while Georgia acted before.
Arizona specifically updated its deadlines for post-election canvassing and recounts, while Nevada set new deadlines for recounts and for resolving legal challenges.
Pennsylvania and Wisconsin, however, have made no such adjustments, leaving their electoral systems – and a potentially decisive 29 of the 538 Electoral College votes – vulnerable to partisan lawsuits and political pressures that could force them to miss the certification deadline.
DEADLINE RISKS
Advocates fear a missed certification deadline could present a hurdle for presidential electors to cast their votes by the Dec. 17 federal deadline, add grist to political claims of a faulty election system and raise the possibility of a state’s election results getting rejected by Congress.
“It is a problem,” said Rex VanMiddlesworth, an attorney focused on threats to American democracy. “States can mess this up so badly that their votes aren’t counted, or states could deliberately want to screw it up so badly that their votes aren’t counted.”
Other democracy advocates see a limited danger, given that the Democratic governors of Pennsylvania and Wisconsin are unlikely to hold up certification and that reforms provide expedited court access if the deadline is missed.
“That should be a pretty good assurance that the process has been completed fairly and accurately,” said Adav Noti, executive director of the Washington-based Campaign Legal Center.
Legal experts say the greatest danger would be a contested election that hangs on the outcome of a single state, especially with a narrow margin of victory.
“The closer it is, you know, the more pressure is going to come to bear,” said Derek Muller, a Notre Dame University law professor who advised the Senate on drafting the 2022 legislation.
Democracy advocates warn that a contested election could lead to protests, or even violence similar to the Capitol assault, especially ahead of state electors’ Dec. 17 deadline.
Muller predicted the legal transfer of power would remain intact, given the readiness of the courts to intervene, candidate Trump’s inability to wield presidential power and the unlikelihood that a majority of Congress would reject a state’s results.
‘LITIGATION ON EVERYTHING’
Earlier this year in Wisconsin, legislation that would have aligned the state’s electoral system with federal reforms easily passed the Republican-controlled state Senate. But it failed to reach the floor of the Assembly, also Republican controlled, before lawmakers adjourned for the year in February.
“The bill would have ensured everything went smoothly. I have faith that Wisconsin should be okay. But unfortunately, we don’t know for sure,” said state Representative Lee Snodgrass, top Democrat on the Assembly’s election committee.
“The danger is that if we don’t meet the deadline, we open ourselves up to further litigation,” she added. “There could be litigation on everything.”
Wisconsin technically missed a certification deadline in 2020 due to Trump’s efforts to invalidate its election results. Democratic Governor Tony Evers filed an initial certificate identifying the state’s electors and followed up with a second, final certificate three weeks later, after the state Supreme Court ruled against Trump.
In Pennsylvania, a bipartisan electoral reform bill passed the Democratic-controlled House on July 10. But there is no sign that the Republican-led state Senate will take up the measure when lawmakers reconvene in September.
Michael McDonald, policy director at the Pennsylvania Department of State, said court rulings following a flurry of recount petitions during the 2022 election made it clear that county officials do not have the discretion to delay certification.
He said the state launched a training program to remind county officials about their obligations under federal and state law, which include certifying their results by the third Monday after a general election, which this cycle falls on Nov. 25.
Still, some observers said they worried that the failure of the state’s legislature to act raised the risk of challenges.
“If a state like Pennsylvania can’t get their act together to certify the election results in the presidential election because of ongoing litigation, then it throws the reform act out of kilter,” said John Jones, a former federal judge in Pennsylvania appointed by former Republican President George W. Bush.
Jones, Gephardt and VanMiddlesworth are affiliated with the nonpartisan group Keep Our Republic, which seeks to reinforce trust in the electoral system through community outreach.
“There are legal theories that I, in my wildest dreams, probably can’t think of, that will be espoused by folks bringing these suits,” Jones said.
(Reporting by David Morgan in Washington and Nathan Layne in Wilton, Connecticut; Editing by Scott Malone and Marguerita Choy)
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