Many moving into the 2024 election have been worried about the outcome being contested. Elsewhere   I have looked at some potential structural challenges to the election – via Congress and via the Judiciary – but there is still one element of the electoral process that could majorly play a role in the election, which is the voting process itself.  Under the umbrella of the voting process there are two major areas, one of which has been more resistant to challenges in recent history than the other.  The first is who votes and how, and the second is how the votes are counted.

In the last 50 years (until 2020) the public consciousness has not placed much importance on the issue of who votes.  The assumption is that any 18-year-old citizen has the right to vote, regardless of race or gender.  While who does vote was considered, the ability to vote was assumed.  This has not always been the case, and it is very important to remember that a potential contributor to a contested election is who gets their vote counted.  This is a precedent set by 1876, where massive voter suppression campaigns in the form of violence and regulations designed to prevent black people from voting caused the votes cast to be suspect, forming the basis for the disputes over the election in 1876.  Based on the example of 1876, it is very important to focus on who is allowed to vote, and it is not a solved problem.  For example, many states have started to pass laws that are considered by some to be voter suppression, and the consent decrees created by the Civil Rights Act have started to be weakened.  The campaign to reduce the power of mail in and absentee ballots, when combined with the weakened enforcement of the Civil Rights Act indicates the possibility of a slide back towards a time where universal suffrage was not assumed, which could contribute heavily to a contested election in 2024, just as it did in 1876.

In addition to who votes, the method of counting votes is another potential way to challenge the results of an election.  The clearest example of this was in 2000 in Florida, where frequently changing and unclear voting laws resulted in the judicial challenges to the election and were the grounds on which the Supreme Court decided the election for George W. Bush.  The debate over how a vote is counted is not one that is confined to the 2000 election.  In 2020 there was a lot of noise (and court cases) put forward about voter fraud, which was the underlying concept that caused the election to be considered “contested.”  Combining the continued rhetoric over voter fraud with states like Georgia and elsewhere, where the vote counting process is in flux and changing frequently, the conditions that precipitated a contested election in 2000 and 2020 appear to be present heading into 2024.

While suffrage and the vote counting process is something that, after the Civil Rights movement, many Americans had accepted as automatic, the 2000 and 2020 elections demonstrate just how important paying attention to these processes are in ensuring uncontested elections.  In the extreme case, the election of 1876 serves as a reminder of what can happen when these areas are ignored, meaning that heading into 2024 the rights to vote and have your vote counted need to be defended in order to avoid destabilizing contested elections, and are strong candidates for pathways to a contested election this year.