The heightened divisions of the United States pose a serious challenge in the upcoming presidential election, according to Benjamin Ginsberg, Volker Distinguished Visiting Fellow and national counsel to the 2000 and 2004 Bush-Cheney presidential campaigns.
“The challenge for this election cycle is that we are a really divided country,” Ginsberg said. “There is half the country—certainly a third of the country—that doesn’t believe in the reliability of election results and that is a crisis for our democracy.”
The Rappaport Center for Law and Public Policy hosted a panel on Oct. 8 to address the challenges of this year’s upcoming election, reflecting on lessons from recent elections and how state officials across the country have adapted and prepared for potential obstacles.
The panelists highlighted certification challenges as a significant concern for officials this year, especially in light public disputes about the integrity of the 2020 election.
“I’m most concerned … about that post-election period during the certification process,” expressed Leigh Chapman, former acting secretary of state of Pennsylvania. “In recent years, it’s become very contentious.”
During the 2022 midterms, a number of election challenges delayed the certification process in key states, as a handful of counties refused to certify their results.
“When I was acting secretary of state, a lot of election deniers used a provision in the Pennsylvania election code that was really unknown and never used before, and they filed petitions for recounts across the state,” Chapman recalled. “Because of the vast number of petitions, it really held up the certification process because some judges just threw it out and said, ‘There’s no fraud or error here. These are baseless petitions. You know, we’re not going to even look at this.’ But some did require votes to be recounted, which takes time.”
According to the American Bar Association, a tsunami of frivolous lawsuits, similar to those Chapman referenced, sought to overturn results nationwide after the 2020 election. Nearly all were dismissed as baseless.
“A lawsuit without provable facts of an actual violation of law is just a tweet with a filing fee,” joked panelist Justin Levitt, former Deputy Assistant Attorney General for the Department of Justice’s Civil Rights Division.
Levitt addressed the continued threat of foreign interference, referencing the “hack” on American people that occurred during the 2016 election.
“[In 2016] the concern was, they’d get into the voter registration system,” Levitt said. “They’d get into the machines. They’d manage to change the results in some way. None of that happened. Instead, what we saw in 2016 is they recognized that the weak link is human, and so they hacked us—the American people. They amplified some of the disagreements we already had. They engaged in messaging in order to foster distrust.”
Despite these concerns, Ginsberg said that election officials have learned from these experiences and made significant improvements.
“What I am optimistic about is the work that election officials have done to get ready for this,” Ginsberg said. “I do think that especially in the contested states, election officials have learned those lessons. They’re not going to be surprised this time—they will know much better how to refute disinformation, how to be transparent and to try and convince people [of the integrity of the 2024 election].”
Moreover, in late 2022, the United States Congress passed the Electoral Count Reform and Presidential Transition Improvement Act, which now requires states to move up the deadline for certification, according to Levitt. The law also raises the threshold for congressional challenges to electors, from just one House member and one senator, to 20 percent of both chambers.
“The new Electoral Count Reform Act made it a little bit more difficult to create problems—for bad actors—to create problems,” Levitt said. “So it raised the threshold to create noise and disturbance. And I think that too is a good thing.”
Levitt expressed hope for the transitional period after the election.
“I’m confident that the results will hold and that the election process will once again demonstrate its integrity,” Levitt said. “Despite the noise, we are in control of this one.”