eDemocrats and Republicans are already preparing in case they decide to challenge the results of the 2022 midterm elections.
The amount of money raised by both Democrats and Republicans to pay for election-related litigation is surpassed previous election cycles to this point. And in a year when a number of Republican candidates on the ballot have expressed their belief in the lie that the 2020 election was stolen by former President Donald Trump, researchers who study election administration and law are watching closely to see if any candidates decide to challenge the results.
Although there are numerous procedural checks in each state to ensure that the candidate who wins the majority of the vote is ultimately sworn in, the seeding of mistrust in the electoral process that has led to January 6, 2021 attack on the US Capitol also played in some states before November 8.
If candidates want to challenge the results, some may request a recount. They could also choose to sue an election administrator, but the likelihood of winning after contesting the race is still low due to secure voting processes. Some may choose to file an an election race against their opponent – a separate legal process where the losing candidate can appeal to a specific court (which varies by state) if they want to challenge the results of the election or the way the election was administered. But these races are also hard to win. The researchers say the more significant risks are that candidates increase mistrust in the election process and if those responsible for certifying election results do not fulfill their duties.
Voter fraud is Rarely in the US The Heritage Foundation., the right-wing Washington thank-tank, has documented only 1,191 voter fraud convictions dating back to 1992 — out of hundreds of millions of votes cast. in 2014 analysisJustin Levitt, a professor at Loyola Law School, found about 31 potential cases of voter impersonation fraud between 2000 and 2014 — out of more than one billion ballots cast during that time.
“The increase in disputed results is itself an indication that we are at a precarious time when it comes to the health of our democracy and the public’s confidence in that process,” said Rachel Ory, associate director of the Elections Project at The Center for Bipartisan Policy, a nonpartisan think tank in Washington.
When and how are the counts done?
The mechanisms for contesting a race vary by state, but usually within a certain number of days after the election, a candidate can request a recount. In some states, a candidate can request a recount only if the vote margin between the candidates falls below a certain percentage. in Texas, for example, a candidate can request a recount only if the difference in votes received by him and his opponent is less than 10%. Normally, the applicant must pay for the recount.
In other states, recounts are automatically triggered and paid for by the state when the race is very close — in Minnesota, for example, it happens when results for certain races are within 0.25 percent — or a candidate can request a recount and to pay for it if the margin is greater.
In some states, losing candidates can’t request a recount, but the state will automatically conduct a recount if the results are within bounds—in Florida, for example, this margin is 0.5% of all votes cast to trigger an automatic machine recount. A similar recount 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 are unhappy with the recount.
Since 2020, the number of contested races and the number of election-related lawsuits filed have increased, Ori says. This was said by UCLA law professor Richard Hassen, who is an expert on election law Washington Publish that the rate of election litigation has nearly tripled over the past 20 years.
In the 18 months since the 2020 election, the Democratic and Republican parties have raised more than $121 million earmarked for litigation and recount expenses, said Derek Mueller, a University of Iowa law professor whose research focuses on the electoral law based on analysis Federal Election Commission data. These funds are available to candidates through the Republican National Committee or the Democratic National Committee. In 2020, the countries raised $85 million, Mueller says.
“If you talk to Republican or Democratic attorneys, they’d say we’re just following the rules of the game or we want to make sure we’re allowing eligible voters to vote and no one else. So there are ways in which [litigation] it’s all part of the process,” says Muller. But “voters can become disenchanted if it appears that litigation is driving the results rather than the rules we established early in the political process.”
It is rare for post-election litigation to succeed. Trump, for example, filed 62 lawsuits related to his 2020 election loss. Many were dismissed by state or federal judges, and none of them changed the outcome or revealed significant election fraud or problems. “If you file a lawsuit, you have to provide evidence to prove that claim,” said David Kimball, professor and chair of the political science department at the University of Missouri-St. Lewis. “Overall, we have very minimal levels of voter fraud in American elections, so it’s rare for someone to actually provide evidence of serious election fraud.”
Recounts or litigation often do not change election results, but experts say the greater risk to democracy is if election administrators, whose duty it is to certify election results, decide not to follow the rules established before the election.
“Fragile lawsuits, they just get thrown out,” said Lona Atkeson, director of Florida State University’s LeRoy Collins Institute, a statewide nonpartisan political organization. “The biggest thing I’m worried about is that the local election officials who are required to sign and certify the election results won’t do it.”
If an election administrator refuses to certify the results of a fair election, it may prevent or delay the process of electing the winning candidate and may disenfranchise voters who legitimately voted. It can also lend false legitimacy to conspiracy theories when people whose role it is to certify election results cast doubt on the process, Ori says.
Otero County, New Mexico, made national headlines this year when County Commissioner Covey Griffin said he would not certify primary election results. The state Supreme Court stepped in and forced the county to do so certify the results, which it eventually did on June 17 on a 2-1 vote, with Griffin voting against. Griffin, who was at the Capitol on Jan. 6, was later removed from service for taking part in the rebellion.
“We have people certifying the election saying they somehow don’t believe the election,” Atkeson says. “If these people decide they don’t want to accept votes or don’t want to [certify]this is a serious potential problem for the election.
The wider impact
In October, Arizona Republican gubernatorial candidate Carrie Lake, who falsely claimed the 2020 election was “stolen,” was asked CNN if he accepts the results of his own race. “I will win the election and I will accept this result,” Lake said.
Lake is one of hundreds of candidates on the ballot who said the 2020 election was stolen by Trump in states from Oregon to Florida (one analysis by CBS News found that more than 300 “choice deniers” are running for state and federal office). Analysis by Five thirty eight found that 117 Republican candidates for office who have flatly denied the results of the 2020 election have at least a 95% chance of winning their seats.
Ory of the Bipartisan Policy Center worries that the 2022 election denialists could undermine democracy in the next presidential election. “I have very high confidence that the real winners from  the election will eventually be sworn in after all the contests go through the courts,” she says. “What’s more troubling to me is that if many of the election deniers who are on the ballot this November win their races, in 2024 there’s a risk that if we have people who don’t believe in the election administration in that country, also to supervise elections or to set rules about how elections should be conducted.
If she wins, for example, Lake will oversee the 2024 elections in Arizona. “This is complete nonsense,” Lake told TIME when asked about her concerns, she will override the will of the voters in 2024. “I will certify the election in 2024. You know why? Because we’re going to have election integrity bills that are going to be passed that support our election laws that remove loopholes for fraud. By the 2024 election, we will have fair elections in Arizona, period.”
Although candidates may fail in their attempts to contest fair elections and there are checks to ensure that election results are certified, there can still be real consequences of sowing mistrust in the electoral system.
“While in the past contested elections were one-off controversies, they are now part of a culture of mistrust that is increasingly fueling anti-democratic sentiment,” says Ori. “It’s that framework that has shifted and in many ways is more difficult to deal with.”
More must-see stories from TIME