Republican candidates who claim that the 2020 election was stolen from Donald Trump have been nominated for governor in four critical swing states, raising concerns that if elected they could try to sway election results in 2024 and beyond.
In Arizona, Pennsylvania, Michigan and Wisconsin, Republican primary voters elected a candidate who has denied the results of the 2020 election and believes that voter fraud influenced the results. GOP voters also nominated an election-denying candidate in Maryland, though he has less chance of winning in a blue state.
Many more Republican gubernatorial candidates have questioned whether the 2020 election was legitimate or refused to say that President Joe Biden was the rightful winner. But these five are more vocal election deniers, who would be willing to call for audits or move to decertify results.
If they win in November, they will have less of a direct impact on elections than the six election deniers who are running for secretary of state, a position that’s the chief election official in most states. But the governors’ impact could still be significant.
They will sign or veto legislation governing the administration of elections, which could affect which voters are able to cast ballots and how much financial support counties get to administer elections. Governors can also issue executive orders concerning election administration in emergency situations. And in Pennsylvania, the governor gets to appoint the secretary of state, giving that governor immense power over elections.
Currently, state law determines whether governors play a part in the certification of electoral votes, but in every state, governors are then supposed to transmit those votes to Congress.
If Congress were to pass a bill to modernize the Electoral Count Act to reform how electoral votes are counted, governors could be empowered to select their state’s presidential electors in a new way.
The current proposal, introduced by a bipartisan group of senators, requires that at least six days before the Electoral College meets, each governor must submit a “certificate of ascertainment” identifying their state’s presidential electors, and that document would be “conclusive.”
The provision is included to prevent states from submitting more than one slate of electors, as seven states did in 2020 when Trump supporters submitted fake electors.
If a rogue, election-denying governor chose to certify the electors with fewer votes, the certification would then go to state and federal courts, who would have the final say.
Marc Elias, an elections lawyer who has worked for Democratic campaigns and elected officials, has expressed concerns that the reform bill gives too much power to potentially election-denying governors.
“One would hope that a federal court would overturn the results in a particular state if the ‘Big Lie’ governor, for instance, certified the presidential candidate who received fewer lawful votes than the candidate who actually won,” he wrote for Democracy Docket, a progressive voting advocacy group he started. “But nothing in this law assures that or even expresses that preference over the conclusiveness of the governor’s certification.”
But Rick Pildes, a constitutional law professor at New York University, said that’s a misunderstanding of the bill.
He said currently, governors have too much discretion when it comes to transmitting the document certifying the state’s electors. “The concern there is a governor who comes up with reasons to refuse to send the result that the state has already certified as the proper result of the election,” he said.
Several of the GOP candidates for governor say that in 2020, they would not have transmitted their state’s certified electors.
But the Electoral Count Reform Act would protect against that possibility by adding judicial review. Pildes also said that a simple tweak, making it…
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