Democrats and Republicans are already preparing in case they decide to contest the results of 2022 midterm elections.
The amount of money both Democrats and Republicans have raised to pay for election-related litigation has surpassed previous election cycles at this point. And in a year where a number of Republican candidates on the ballot have expressed that they believe the falsehood that the 2020 election was stolen from former President Donald Trump, researchers who study election administration and law are keeping a close eye on whether any candidates decide to contest the results.
Though there are numerous procedural checks in every state in place to ensure the candidate who won the majority of votes is ultimately sworn into office, the sowing of distrust in the election process that led up to the Jan. 6th, 2021 attack on the U.S. Capitol is also playing out in some states ahead of Nov. 8.
If candidates want to dispute the results, some can request a recount. They could also choose to sue an election administrator, but the likelihood of winning after contesting a race is still low because of secure voting processes. Some may choose to file an election contest against their opponent—a separate legal process in which a losing candidate can appeal to a designated court (which varies by state) if they seek to challenge the results of the election or the way the election was administered. But those contests are also difficult to win. The more significant risks, researchers say, are candidates furthering distrust in the election process, and if those in charge of certifying the election results don’t perform their duties.
Voter fraud is very rare in the U.S. The Heritage Foundation, a right-wing Washington thank tank, has documented only 1,191 convictions of voter fraud going back to 1992—out of hundreds of millions of votes cast. In a 2014 analysis, Justin Levitt, a professor at Loyola Law School, found about 31 potential incidents of voter impersonation fraud between 2000 and 2014—out of more than one billion ballots cast during that time.
“The increase in results being contested is in itself an indication that we are at a precarious moment when it comes to the health of our democracy and the public’s trust in this process,” says Rachel Orey, associate director of the Elections Project at the at the Bipartisan Policy Center, a nonpartisan think tank in Washington.
When and how recounts happen
The mechanisms to contest a race vary by state, but generally within a certain number of days after the election, a candidate can request a recount. In some states, a candidate can only request a recount if the difference in votes between the candidates falls under a certain percentage. In Texas, for example, a candidate can only request a recount if the difference in votes received by them and their opponent is lower than 10%. Typically, the candidate must pay for the recount.
In other states, a recount is automatically triggered and paid for by the state when a race is very close—in Minnesota, for example, this happens when the results for certain races are within 0.25%—or a candidate can request a recount and pay for it if the margin is greater.
In some states, losing candidates cannot request a recount, but the state will automatically run a recount if the results are within a tight margin—in Florida, for example, that margin is 0.5% of total votes cast to trigger an automatic machine recount. Such a recount famously began in Florida in 2000 to decide the presidential race between George W. Bush and Al Gore, until the Supreme Court stepped in and effectively ended the recount, handing the presidency to Bush.
Candidates also have the option to sue if they dispute the election results or aren’t satisfied with a recount.
Since 2020, the number of contested races and the amount of election-related litigation filed has increased, Orey says. UCLA law professor Richard Hasen, who is an expert in election law, told The Washington Post that in the last 20 years, the rate of election litigation has nearly tripled.
In the 18 months since the 2020 election, the Democratic and Republican parties have raised more than $121 million dedicated to litigation and recount costs, says Derek Muller, a professor of law at the University of Iowa whose research focuses on election law, based on an analysis of Federal Election Commission data. Those funds are accessible to candidates through the Republican National Committee or the Democratic National Committee. In 2020, the parties collected $85 million, Muller says.
“If you talk to lawyers for Republicans or Democrats, they would say we’re just policing the rules of the game, or we want to ensure that we’re allowing eligible voters to vote and nobody else. So there are ways in which [litigation] is all a part of the process,” Muller says. But “voters can get frustrated if it seems like litigation is driving the results rather than the rules we set in place at the beginning of the political process.”
It’s rare that post-election litigation succeeds. Trump, for example, filed 62 lawsuits related to his election loss in 2020. Many were tossed out by state or federal judges and none of which altered the outcome or revealed any significant fraud or election issues. “If you make a claim in court, you have to provide evidence to prove that claim,” says David Kimball, professor and Chair of the Department of Political Science at the University of Missouri-St. Louis. “We generally have very minuscule levels of voter fraud in American elections, so it’s rare that somebody actually produces evidence of serious election fraud.”
Recounts or litigation do not often alter the results of an election, but experts say the greater risk to democracy is if election administrators whose duty it is to certify election results choose not to follow the rules set in place prior to an election.
“Frivolous lawsuits, they just get thrown out,” says Lonna Atkeson, director of the LeRoy Collins Institute at Florida State University, a nonpartisan statewide policy organization. “The biggest thing I’m concerned about is that local election officials who are required to sign and certify election results won’t.”
If an election administrator refuses to certify the results of a fair election, it could impede or delay the process of seating the candidate who won, and it could disenfranchise voters who legally cast their ballots. It could also give false legitimacy to conspiracy theories when people whose role it is to certify the results of an election cast doubt on the process, Orey says.
This year, Otero County, NM, made national headlines when county commissioner Couy Griffin said he would not certify the results of a primary election. The state supreme court stepped in and forced the county to certify the results, which it ultimately did on June 17 in a 2-1 vote, with Griffin voting no. Griffin, who was at Capitol on Jan. 6th, was later removed from office for being involved in the riot.
“We have people who certify the election saying they don’t trust the election in some way,” Atkeson says. “If those people decide they don’t want to accept votes, or they don’t want to [certify], that’s a serious potential problem for the election.”
The broader impact
In October, GOP candidate for Arizona Governor Kari Lake, who falsely claims the 2020 election was “stolen,” was asked by CNN if she would accept the results of her own race. “I’m going to win the election and I will accept that result,” Lake said.
Lake is one of hundreds of candidates on the ballot who have said the 2020 election was stolen from Trump, in states from Oregon to Florida (one analysis by CBS News found more than 300 “election deniers” running for state and federal offices). An analysis by FiveThirtyEight found that 117 Republican candidates for office who have outright denied the results of the 2020 election have at least a 95% chance of winning their seats.
Orey at the Bipartisan Policy Center worries election deniers on the ballot in 2022 could undermine democracy in the next presidential election. “I have very high confidence that the true winners of the  election will ultimately be sworn into office after all of the contests work their way through the courts,” she says. “What is more concerning to me is if many of the election deniers who are on the ballot this November win their races, going into 2024 there is risk that if we have people who don’t believe in election administration in this country either overseeing elections or setting rules for how elections should take place.”
If she wins, for example, Lake will oversee the 2024 election in Arizona. “That’s total bull—t,” Lake told TIME when asked about concerns she would override the will of voters in 2024. “I will certify the 2024 election. You know why? Because we’re going to have election integrity bills that are passed that shore up our election laws, that remove loopholes from cheating. By the 2024 election, we’re going to have honest elections in Arizona, full stop.”
Though candidates may fail in their attempts to contest a fair election, and there are checks in place to ensure election results are certified, there can still be real consequences by sowing distrust in the election system.
“While in the past, contested elections were one-off controversies, they are now part of a culture of distrust that increasingly entertains anti-democratic sentiment,” Orey says. “It’s that framework that has shifted, and in many ways that is harder to tackle.”
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