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FOCUS: Jeffery Toobin | The Legal Fight Awaiting Us After the Election
Jeffery Toobin, The New Yorker
Toobin writes: "The aftermath of November's vote has the potential to make 2000 look like a mere skirmish."
he immediate aftermath of the Presidential election of 2000 has taken on the air of legend. On Election Night, news organizations first called Florida for Vice-President Al Gore—then, about two hours later, withdrew the call and, about four hours after that, declared that George W. Bush, the governor of Texas, had won the state, giving him enough electoral votes to become President. Gore called Bush to concede, and left his hotel in a motorcade to announce the end of his campaign to his supporters. His aides, learning that the race in Florida was, in fact, too close to call, tried frantically to contact the Vice-President in his limousine. They reached him just in time, and he telephoned Bush to retract the concession. Bush indignantly told Gore that his “little brother”—the governor of Florida, Jeb Bush—had said that he had won. “Let me explain something,” Gore replied. “Your little brother is not the ultimate authority on this.”
Like all historical events, the following thirty-five days can look, in retrospect, inevitable, even preordained. But they were a product of choice, improvisation, and happenstance. Gore demanded recounts in four Democratic-leaning counties, which began the painstaking process of studying their punch-card ballots and determining whether the tiny boxes known as chads had been fully detached. Bush responded by filing a lawsuit in federal court in Miami to stop the recounts. In one of the lesser-known events surrounding that case, James A. Baker III, Bush’s lead strategist at the time, called John C. Danforth, the former Republican senator from Missouri and an ordained minister, who was famous for his rectitude. Baker wanted Danforth to be Bush’s spokesman in the suit. Danforth was horrified. “Candidates don’t sue,” he told Baker. “You could ruin Governor Bush’s career. He’s only fifty-four years old, and the decision to file a court case like this would be a black mark that followed him forever. And it would destroy the reputation of everyone involved on the Bush side.”
Danforth came from an era when political norms dictated a culture of deference to announced electoral outcomes. (Richard Nixon, reflecting these values, chose not to challenge the results of his narrow defeat in 1960.) Baker thanked Danforth for his time and proceeded to file that lawsuit and several others, mobilizing the Republican Party behind the efforts for the George Bush–Dick Cheney ticket. There were street protests outside the Vice-President’s mansion (“Get out of Cheney’s house!”), and a deployment of the finest political and legal talent in the Republican Party. Many of the lawyers working on the recount cases, far from suffering damage to their careers, were guaranteed political futures—they included John G. Roberts, Jr., whom Bush appointed to the Supreme Court, and Noel Francisco, who became President Trump’s Solicitor General.
To the frustration of countless Democrats, Gore took a high-minded, traditional approach, asserting that the recount was a legal, not a political, process, and directing his supporters to stay off the streets. (Gore told the Reverend Jesse Jackson to call off protests that he had organized against the disenfranchisement of African-Americans in Florida.) In this spirit, Gore named the diplomat Warren Christopher, rather than a pol, to lead his recount efforts, and relied on a talented but small group of lawyers in Florida, who struggled to keep up with Republican reinforcements from around the country. The contrasts were cultural in addition to being substantive. David Boies, Gore’s lead lawyer toward the end of the process, promenaded along the broad plazas of Tallahassee, bantering cheerfully with reporters and passersby. Benjamin Ginsberg, the general counsel to the Bush campaign and the dean of Republican election lawyers, paced the streets in a state of rage. “They are trying to steal this,” Ginsberg said repeatedly, of the Democrats, color rising to the top of his bald head. In the end, Bush’s resort to the courts proved to be his salvation. In the case known as Bush v. Gore, the Supreme Court, by a vote of five to four, held that the recounts violated Bush’s rights, thus sealing his victory in Florida.
Ultimately, George Bush was declared the winner in Florida by five hundred and thirty-seven votes, out of some six million cast. The result might have been the same if Gore had chosen a more assertive strategy, but the parties’ contrasting approaches—Republican aggression versus Democratic restraint—remain a crucial legacy of the contest. That year, the recount struggle came as a surprise to both candidates. This year, each side has mustered for a legal fight that began months ago and may well continue long after November 3rd. President Trump has ratcheted up the Bush strategy of total political warfare: he has already refused to commit to accepting the outcome of the election. “The only way we’re going to lose this election is if the election is rigged—remember that,” he said recently. “So we have to be very careful. . . . The only way they’re going to win is that way. And we can’t let that happen.”
Democrats say that a strategy of reticence is a thing of the past. One Democratic veteran assured me that the Democratic Party of today is “totally different” from the Party of 2000: “Much less institutionally focused, more ideologically grounded, and uncompromising. There is zero chance that anybody is going to say at some point that it’s better for the country that we settle the matter now, give in, and then try to win in four years. No one thinks that another four years of Trump is survivable. The campaign believes this is an existential battle.”
Compounding all this is the coronavirus pandemic, which will force dramatic changes in how voters cast their ballots. The number of mail-in ballots will increase substantially: recent national polls suggest that about a third of all voters plan to vote by mail this year. Trump has assailed the practice of voting by mail, asserting without evidence that it is susceptible to fraud. In fact, Washington, Oregon, Colorado, and Utah have used universal mail-in voting—in which the state mails a ballot to each registered voter—for some time, including in previous Presidential elections, with few significant problems. There is no meaningful difference between absentee voting and mail-in voting, but Trump supports absentee voting, even using it himself. In early August, when he was signing his Florida absentee-ballot application, he said, “Absentee ballots are good. Universal mail-ins, when you get inundated with these things, are bad and will lead to terrible things, including voter fraud.” More recently, Trump has spoken at length about the purported evils of universal mail-in voting. “They are sending out fifty-one million ballots to people that didn’t ask for them,” he said during an interview with Sean Hannity on Fox News, on the final night of the Democratic National Convention. “This will be the most fraudulent election in history. . . . It’s just a horrible thing. It’s going to be impossible to police.” (It’s unclear where Trump got that figure; at other times, he has used the figure of eighty million.)
Last month, the House of Representatives passed a bipartisan bill to provide an additional twenty-five billion dollars to the U.S. Postal Service, largely to insure that it could process the additional mailed ballots. Trump has vowed to veto the bill if it reaches him. “They need that money in order to make the post office work, so it can take all of these millions and millions of ballots,” he said. “If we don’t make a deal, that means they don’t get the money. That means they can’t have universal mail-in voting. They just can’t have it.” In recent weeks, he has also attacked the use of drop boxes, which allow voters to deposit their ballots before Election Day. He has claimed, without evidence, that they can be used to perpetrate electoral fraud.
Trump’s grievance is almost certainly tied to the fact that Democrats are more likely to vote by mail in the upcoming election than Republicans are. This will contribute to a phenomenon called the “blue shift”—votes that are counted, and reported, later on tend to favor Democrats. This year’s blue shift may be particularly dramatic. In a recent poll by Hawkfish, a data firm associated with Democrats, only nineteen per cent of Trump supporters said that they planned to vote by mail, compared with sixty-nine per cent of Biden supporters. Using data from late-summer polls, Hawkfish predicted that Election Night results could show Trump in the lead, with a total of four hundred and eight electoral votes. Four days later, with seventy-five per cent of the mail-in votes counted, Biden would take the lead, with two hundred and eighty electoral votes and, with all the votes counted, the former Vice-President would win the Presidency, with three hundred and thirty-four electoral votes.
Throughout the campaign, Trump has sought to undermine voters’ faith in the democratic process—going so far as to suggest, on Twitter, that the election should be delayed until people could “properly, securely and safely” vote. (He later backtracked on the idea, which would require a change to federal law.) Last week, Trump tweeted, “the Nov 3rd election result may NEVER BE ACCURATELY DETERMINED.” The norms of political conduct, already fading at the turn of the century, now seem to have disappeared altogether. As a result, the aftermath of the 2020 election has the potential to make 2000 look like a mere skirmish.
Democrats and Republicans have already filed dozens of lawsuits in attempts to define the rules in November—an overture for the battles that may follow the election. If Trump is the id of his campaign, its superego is Justin Riemer, the chief counsel of the Republican National Committee, who previously worked for the Virginia Board of Elections. Riemer eschews overstatement in favor of the careful words of a onetime bureaucrat. “We see what’s going on as a systemic attack on the existing absentee-voting safeguards that are in place around the country,” Riemer told me. “We acknowledge that there is going to be much more absentee voting, so it’s never been more important to have those safeguards.” In recent weeks, the Trump campaign has been sending questionnaires to election officials in swing states, asking for details about how they intend to conduct the election and count the votes. The officials’ answers could become important evidence in any post-Election Day litigation.
The architect of the Democrats’ pre-Election Day legal strategy is a Washington lawyer named Marc Elias. He is a partner at the firm Perkins Coie, the former professional home of Bob Bauer, who defined the role of the Democratic election specialist and served as the White House counsel under President Obama. Bauer is bearded and professorial; he now teaches at New York University School of Law and advises the Biden campaign. Elias, who relishes the combat of litigation, is more of a street fighter. He came to prominence in 2008 and 2009, when he represented Al Franken in an extended recount in a Minnesota Senate race. Franken eventually prevailed by three hundred and twelve votes, out of nearly three million cast. “That shaped my approach,” Elias told me. “Everything you do in the voting process should shape what happens at the end, when the votes are counted.” In light of the likely challenges to changes in vote totals after Election Day, the Biden campaign has established a legal task force, which includes hundreds of lawyers. It’s led by Bauer and Dana Remus, the campaign’s general counsel, and includes two recent Solicitors General in Democratic Administrations, Walter E. Dellinger III and Donald G. Verrilli, Jr.
Shortly after the pandemic broke out in the United States, in March, Elias, in a blog post titled “Four Pillars to Safeguard Vote by Mail,” outlined the Democrats’ approach:
- Postage must be free or prepaid by the government.
- Ballots postmarked on or before Election Day must count.
- Signature matching laws need to be reformed to protect voters.
- Community organizations should be permitted to help collect and deliver voted, sealed ballots.
To someone unversed in the arcana of election law, these demands may seem uncontroversial—but Riemer likes to frame each of Elias’s pillars as an invitation for voter fraud. “Federal law says that Election Day is the first Tuesday after the first Monday in November, and we believe that’s when the election ends,” Riemer told me. “And the postmark rule is impractical.” He believes that states should make their own decisions about postage-paid envelopes, and that election officials must compare the signatures on absentee ballots with those on voter-registration documents to insure that only eligible people vote and that no one votes twice.
Riemer also emphatically opposes the community collection of ballots—the practice by which campaigns or community groups gather absentee ballots from multiple voters and submit them together—known by Republicans as “ballot harvesting.” It is true that community ballot collection, unlike Elias’s other pillars, has been associated with voter fraud, if rarely. In a 2018 race in North Carolina’s Ninth Congressional District, a Republican operative, according to investigators, filled in at least a thousand mail-in-ballot requests, many without the voters’ knowledge. After the fraud was exposed, the state held the election again, several months later. Republicans often cite this past May’s election for city council in Paterson, New Jersey, which led to charges of fraud for the misuse of mail-in ballots against several local officials. Trump tweeted, “So much time is taken talking about foreign influence, but the same people won’t even discuss Mail-In election corruption. Look at Paterson, N.J. 20% of vote was corrupted!” At a news conference, Trump told reporters that they should look into Paterson, “where massive percentages of the vote was a fraud.” The fraud involved several hundred votes; as in North Carolina, a judge ordered a new election.
Campaigns face a maddening variety of challenges as they try to change, or even fully understand, the rules of the road. The United States has arguably the most decentralized election administration of any advanced democracy. This is especially evident in the process for choosing a President. Each state conducts a separate contest for its electoral votes, with its own rules for casting and counting ballots. But there are approximately ten thousand five hundred different voting jurisdictions, many of which have their own distinctive procedures as well. The legal doctrine known as the Purcell principle, named for a Supreme Court case from 2006, holds that courts should refrain from making changes to election procedures close to Election Day, because of the potential for creating confusion for voters. (The court has never defined how close is too close.) As a result, the debates over Elias’s four pillars, and also over universal mail-in voting, are being played out in state after state at a frantic pace.
Each party has created a Web site to track the progress of election litigation around the country. The Republican site, protectthevote.com, lists cases in nineteen states, and the Democratic site, democracydocket.com, lists cases in twenty-eight. By one accounting, there are now more than two hundred pending lawsuits about the rules for the November election. The claims in the lawsuits vary, but there are consistent themes. The Democrats are seeking both to make it easier to vote and to relax restrictions that prevent individual ballots from being counted. The Republicans are insisting on measures that they assert will limit the number of improper or fraudulent votes.
During the first week of August, Nevada’s Democratic legislature and governor passed a substantial revision to the state’s election law, effectively creating an all-mail contest in November. The Trump campaign sued. “Many of those provisions will undermine the November election’s integrity,” the suit asserted, in a hundred-and-fourteen-page complaint. “Some go beyond that, crossing the line that separates bad policy judgments from enactments that violate federal law or the United States Constitution.” According to Trump’s lawyers, the revised law “requires county or city clerks to count potentially fraudulent or invalid ballots, thereby diluting the votes of honest citizens and depriving them of their right to vote in violation of the Fourteenth Amendment.” In response, Elias’s team asserted that the Nevada legislature “has taken the necessary and appropriate steps to ensure that all Nevadans have safe and meaningful opportunities to vote, both during the pandemic and after.” (The case is pending.) More recently, New Jersey made a similar move to offer all residents the opportunity to vote by mail, and Republicans sued to invalidate the new rules, again asserting that the system would lead to fraud. Phil Murphy, the state’s Democratic governor, who initiated the change, said, of the Republican suit, “Bring it on.” (This case is also pending.)
There are at least five ongoing cases in Pennsylvania, several of them Republican-backed efforts to restrict “ballot harvesting.” But, even if limits are imposed, it is not clear how they would be enforced or what, exactly, they would be. Could family members drop off one another’s ballots? What about distant family members? Close friends? How close? Who would monitor that process? Democrats have filed a suit in Pennsylvania to obtain prepaid postage for absentee ballots and to relax a postmark-date requirement. In another of the Pennsylvania cases, a Republican challenge to the vote-by-mail procedures, a federal judge, J. Nicholas Ranjan, told the plaintiffs, in effect, to put up or shut up—to produce evidence of fraud “in their possession, or if they have none, state as much.” The Republican plaintiffs submitted a five-hundred-and-twenty-four-page filing that mentioned examples of fraud by voter intimidation at the polls and by the alteration of vote totals, but provided no examples of fraud in mail-in elections. (This case, too, is pending.) Last week, the Pennsylvania Supreme Court gave the Democrats an important victory, holding that the state should count all mailed-in votes that were postmarked by Election Day and permitting election officials to add more ballot drop boxes.
Some of the lawsuits involve relative minutiae. In Iowa, Republicans sued three counties that sent absentee-ballot applications to voters with their names and addresses already filled in. “We think voters should have to fill out that information themselves,” Riemer told me. (The G.O.P. won that case.) Only a handful of the lawsuits appear to have been resolved. Rhode Island waived a requirement stipulating that voters obtain the signature of a witness in order to file an absentee ballot. Republicans challenged the change. Their case was rejected in federal district court and in the First Circuit Court of Appeals, and they failed to persuade the Supreme Court to review the judgment. But, even when the Republicans fail to win in court, their lawsuits succeed in raising issues that Trump and his allies may use to claim fraud in the event that the vote count ends with Biden in the lead.
One of the ironies of the Republicans’ obsession with fraud is that theirs is the party with the more significant recent history of misconduct at the polls. Shortly before the 1981 governor’s race in New Jersey, the Republican National Committee created the National Ballot Security Task Force. The group consisted mostly of armed off-duty police officers hired by the G.O.P. to monitor polling sites in Black and Hispanic neighborhoods in Newark and Trenton. The group, whose members wore “NBST” armbands, posted large signs outside polling places that read “WARNING—THIS AREA IS BEING PATROLLED BY THE NATIONAL BALLOT SECURITY TASK FORCE. IT IS A CRIME TO FALSIFY A BALLOT OR TO VIOLATE ELECTION LAWS.” The task-force members challenged the right of some people to vote and blocked the way to the polls for others. In the election, the Republican challenger, Thomas Kean, narrowly defeated the incumbent Democrat, James Florio.
The Democratic National Committee sued the R.N.C. for its role in creating the task force, and in 1982 the two sides settled the case with a so-called consent decree. The Republicans admitted no wrongdoing, but they agreed to refrain from engaging in tactics that suppressed the vote, especially those that affected minority voters. They also said they would not hire anyone to wear armbands at the polls and agreed to allow a federal court to review in advance any plans to conduct ballot-security operations at polling places. Over the years, the R.N.C. has attempted to have the consent decree lifted, arguing that it is obsolete and unnecessary, without success. Finally, in 2018, Judge John Michael Vazquez, over Democratic objections, lifted the decree.
The 2020 Presidential election will be the first in almost four decades in which Republicans will be free from the strictures of the consent decree. The Trump campaign and its allies have announced plans to hire fifty thousand poll watchers in fifteen states to monitor voting locations. Riemer told me, “The Democrats have had an unfair advantage for years because of the consent decree, and we’re just trying to have a fair playing field. Our people will be well trained. They are not there to intimidate, they are not there to suppress the vote. They are there to get out the lawful vote.” But the President has suggested that the Republican poll watchers will not necessarily be so restrained. Sean Hannity, in the interview during the Democratic Convention, asked him, “Are you going to have an ability to monitor, to avoid fraud and cross-check whether or not these are registered voters—whether or not there’s been identification to know that it’s a real vote from a real American?” Trump answered, “We’re going to have everything. We’re going to have sheriffs, and we’re going to have law enforcement, and we’re going to have, hopefully, U.S. Attorneys, and we’re going to have everybody, and attorney generals.” (The President has no authority over local officials.) Sherrilyn Ifill, the president and director-counsel of the N.A.A.C.P. Legal Defense and Education Fund, said, of the poll watchers, “We should prepare for widespread intimidation of voters at the polls and the use of dubious lists that challenge their eligibility to vote. This has long been a tool that has been recognized as a form of voter suppression. It’s an utterly appalling message that no President should be sending out to the public.”
In advance of the 2016 election, Roger Stone, Trump’s longtime friend and adviser, organized a group called Stop the Steal, which was ostensibly intended to stop voter fraud at the polls. In response, Elias’s team invoked the Ku Klux Klan Act of 1871, which prohibits private citizens from interfering with the right to vote, and won a court injunction against Stone’s efforts. Elias doesn’t rule out a similar lawsuit this fall. In addition, Democrats and nonpartisan civil-rights groups like Ifill’s plan on being stationed at as many polling places as possible, to defend the rights of voters. In such a polarized environment, the presence at the polls of watchers with conflicting agendas presents one of the leading possibilities for conflict, if not violence, on Election Day.
Shortly after the polls close, states will begin releasing vote tallies, largely based on ballots cast at polling places. The news networks and the Associated Press are likely to be cautious about issuing projections of victory for one candidate or the other on Election Night. Instead, the vote-counting process could go on for days, if not weeks, under the constant gaze of partisans from both sides. According to Richard Hasen, a professor of law at the University of California, Irvine, “Representatives of the campaigns have the right to be present during every step. Every ballot has to be verified, every envelope has to be sealed, every voter identity checked, and the campaigns get to dispute every judgment that’s made.” Even if courts have clarified the procedures for casting and counting votes in each state and locality, the possibilities for disputes arising as those rules are applied to the actual ballots are nearly endless. How closely must the signature on an absentee ballot match that on the voter-registration form? What happens if a voter clearly indicates her intent—say, by circling a candidate’s name—but fails to fill in the correct bubble on the form?
New York’s Democratic primaries, on June 23rd—among the first major contested elections to take place during the pandemic—offered a modest preview of the chaos we could see after November 3rd. In those races, landslides were called quickly and without controversy. But the process of resolving the closer contests was long and agonizing. I observed one of them at a Board of Elections counting center, on West Thirty-first Street, in Manhattan. The main race still in dispute was the Democratic primary between Carolyn Maloney, the longtime representative from a district that includes the East Side of Manhattan and slivers of Brooklyn and Queens, and Suraj Patel, a young businessman and activist. Turnout was high for a primary. Patel had also challenged Maloney in 2018—about forty-four thousand people voted in that election. This year, the tally on Election Night put Maloney ahead by six hundred and forty-eight votes, 1.6 per cent, but more than sixty-five thousand votes had been cast by mail, and, two weeks later, none of those had yet been counted. In a typical pre-pandemic race in New York State, about ninety-five per cent of voters cast their ballots in person. This year, it is estimated that between forty and sixty per cent will vote by mail. (In Illinois, more than 1.1 million people had applied for absentee ballots by August; in 2018, only four hundred and thirty thousand people in the state voted absentee.)
The magnitude of the challenge for election officials was evident as soon as I entered the counting room, which took up most of the eighth floor of a large office building. There were about twenty counting tables, set at least six feet apart. Two board staffers sat at each table, and they were monitored by representatives from both campaigns; everyone was masked. At the tables, people tried to maintain social distance—mostly in vain, since they were all squinting at the same ballots. The staffers first compared the signatures on the envelopes with the ones in the registration book, and then inspected the ballots themselves. The pace was glacial. At first, staffers counted just two hundred ballots a day, though after a week or so the pace quickened to about eight hundred a day. Still, the initial count took more than a month.
New York, which is heavily Democratic, is unlikely to be competitive in the Presidential election, but there is every reason to believe that the count in the Maloney-Patel race will be simple and straightforward compared to what might happen around the country in the Presidential contest. Based on previous trends, at least twice as many people will vote in November as voted in the June primary; that means at least double the number of absentee ballots to count. In the case of a close race, a recount—in which each side could contest the validity of each ballot—would certainly go on for longer than the month-plus that it took for Maloney to declare victory.
As the New York race also demonstrated, mailed ballots have a markedly higher rate of disqualification. About twenty per cent of the ballots from Manhattan and Queens, and nearly thirty per cent of those from Brooklyn were disqualified—many because voters didn’t sign the envelopes of the absentee ballots, or because they sealed the envelope with tape rather than with moisture. The Postal Service had failed to apply postmarks to many of the absentee ballots, so the Board of Elections disallowed all those that were received after Election Day. Patel successfully sued in federal court to have more ballots counted, especially those without postmarks. But by that point, in early August, Maloney’s lead had grown to four per cent, and the Associated Press called the race for her. (Patel conceded on August 27th.) “The Democrats want to blame Trump and the Republicans for all the problems with voting, and claim that it’s vote suppression,” Samuel Issacharoff, a professor at New York University School of Law, told me. “But the Republicans had nothing to do with the fiasco in New York. The Democrats made all the rules there. There was no conspiracy—the system is just not set up to absorb that many absentee ballots and count them in a reasonable period of time.”
The high disqualification rate for absentee ballots poses a special peril for Democrats. According to a study co-written by Daniel Smith, a professor at the University of Florida Law School, the mail-in ballots of racial and ethnic minorities, and also of young voters, were rejected at a substantially higher rate than those of older white voters across counties, even though the counties varied in the over-all rate at which they rejected ballots. High disqualification rates for mail-in votes were evident in 2020 races around the country. According to studies by the Washington Post and NPR, during the primaries, mailed ballots were disqualified at a far higher rate than in 2016—five hundred thousand in total were deemed invalid. (By comparison, about three hundred and eighteen thousand ballots were disqualified in the 2016 general election.) Franita Tolson, a professor at the U.S.C. Gould School of Law, told me, “You will still see many claims that absentee ballots have been wrongly rejected, and those will lead to court cases. The fact that we are generating lots of voting by mail will generate a lot of litigation.”
Daniel Smith said, “Ultimately, in Florida, it may all come down to the three-member Canvassing Boards, who will decide whether each vote counts. This time, they won’t be staring at chads but comparing signatures and deciding if they match.”
In the days following Election Night, there is likely to be an increasing disparity between the initial poll tallies and the numbers that include mail-in votes. This is not exactly new. According to Edward B. Foley, a professor at the Ohio State University Moritz College of Law, for most of the twentieth century, the preliminary count on Election Night was about ninety-nine per cent of the total count, but, even before COVID, “a new normal developed, because of greater reliance on vote by mail.” For example, on Election Night in 2018, the Republican Martha McSally led the Democrat Kyrsten Sinema by one per cent in the Arizona Senate race. But there were still about six hundred thousand votes to be counted, a quarter of the total number, and, once they were, it was clear that Sinema had won comfortably, by about fifty-five thousand votes. This year, with more mail-in votes, a blue shift is likely to take place in nearly every state.
Voters in nine states will get their ballots mailed to them directly by default, and thirty-six states will offer no-excuse absentee voting—that is, voters will be allowed to choose to vote by mail without having to give a reason. These include two major swing states, Pennsylvania and Michigan. In the past four Presidential elections, Foley explained, Pennsylvania experienced a blue shift of about twenty thousand votes: “That was before COVID and before the state moved to no-excuse absentee voting, so that means there will be a great deal more mail-in votes this year than in the past.” (In the Pennsylvania Democratic primary, in June, which had a low turnout because the Presidential nomination had already been decided, it took more than two weeks to count the votes.)
There is nothing sinister about the fact that Democrats use mail-in voting more than Republicans do. Foley’s concern is that Trump will claim that the blue shift, if it occurs, is evidence of partisan foul play, particularly if it eliminates an apparent Election Night lead in an important state. (Some Democrats have deemed a possible Trump lead on Election Night the “red mirage.”) “If the votes keep shifting, Trump may demand that the Election Night numbers be certified, because he doesn’t trust the mail-ins,” Foley said. In 2018, after a blue shift narrowed the Election Night leads of Republican statewide candidates in Florida, Trump tweeted, “The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible—ballots massively infected. Must go with Election Night.”
The prospect of a blue shift, and Trump’s reaction to it, is one reason that Michael Bloomberg decided to spend a hundred million dollars to help Biden in Florida. “In swing states like Michigan, Pennsylvania, and Wisconsin, they count their Election Day votes first and then the mail-in votes, so it’s entirely possible that Trump will be ahead there,” Howard Wolfson, a senior political adviser to Bloomberg, told me. “Trump has no respect for decorum or tradition, so we assume that he will just claim victory at that point and argue that any ballots that come in after that point are fraudulent.” Florida, on the other hand, counts mail-in votes as they arrive, so the Election Night total may well come close to the state’s final result. Wolfson explained, “Florida is obviously very close, and it’s a state that Trump really has to win to get to two hundred and seventy electoral votes. If we can show that he lost Florida on Election Night, it makes it pretty much impossible for him to claim victory in the election. That was a huge factor in why we decided to invest in Florida.”
It took a Supreme Court ruling to conclude the Presidential race in 2000—and there is an additional set of procedures that may come into play in 2020. They have roots in an even more controversial Presidential election, which took place in 1876. That year, on the night of November 7th, it appeared that Samuel J. Tilden, the Democrat, had defeated Rutherford B. Hayes, the Republican. But the results in several Republican-dominated states had not yet been reported. The vote was especially close in Florida. Shortly before the Electoral College was to meet, in December, the Florida Canvassing Board certified electors pledged to Hayes, but the state’s attorney general certified Tilden as the winner. Louisiana and South Carolina also sent contradictory certifications to Washington. Because neither candidate commanded a clear Electoral College majority, Congress improvised a solution, establishing an electoral commission of five senators, five House members, and five Justices of the Supreme Court. A few days before Inauguration Day, 1877, the commission voted eight to seven to award the Presidency to Hayes. Republicans like Hayes had established Reconstruction in the South after the Civil War, but, as part of the deal that made him President, Hayes agreed to end Reconstruction, with disastrous implications for African-Americans.
Foley told me, “Congress knew that what happened in 1876 was a disaster, an embarrassment, and then there were two more close elections, in 1880 and 1884, so they realized they really had to do something about it.” As a result, Congress passed the Electoral Count Act of 1887, which purported to establish a procedure for resolving disputed Presidential elections. The statute was, Foley said, “a placeholder, better than nothing, which they figured would be improved over time. But Congress has never returned to the issue, and the law has never really been tested. No one really knows what it means.”
There does seem to be general agreement on one provision of the 1887 act: the “safe harbor” clause. It provides that, if a state submits its final tally in the Presidential contest by six days before the meeting of the Electoral College, that decision is “conclusive” and thus free from legal challenge. This year, the safe-harbor deadline is December 8th; the Electoral College meets in each state capitol on December 14th.
It is unclear, however, what will happen if a slow vote count puts a state in jeopardy of missing the deadline. The Court’s opinion in Bush v. Gore provides one possibility, based on Article II of the Constitution, which says that the states must appoint electors “in such Manner as the Legislature thereof may direct.” In its Bush v. Gore opinion, the Court observed that, in the early days of the Republic, the state legislatures, not the voters, selected the Presidential electors in some states. Thus, the opinion went on, “the State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.” The bland legal language obscures the magnitude of this conclusion. It means that a state legislature can simply ignore the votes cast by the state’s citizens and award its Presidential electors to the candidate of its choice. “This is the most frightening prospect of all,” Issacharoff said. “It’s a deep confrontation with the idea that we as citizens have the right to vote for President.”
In 2000, Republicans in the Florida legislature had been planning to invoke this constitutional provision if the length of the recount jeopardized the state’s ability to submit electors in time to be counted. But, to date, no state in the modern era has attempted to preëmpt its voters in this way. Still, the Constitution can arguably be read to give legislatures the power to do so. It’s even conceivable that, if President Trump claimed that a Biden victory in a state was based on fraud, a Republican legislature could overturn the result. If a legislature wanted to try this maneuver—to award its state’s Electoral College votes on its own—could the governor veto it?
In four crucial swing states—Michigan, North Carolina, Pennsylvania, and Wisconsin—there is a Republican legislature and a Democratic governor. The Constitution speaks only of the legislature, and the answer appears to be that the governor would have no role—but no one knows for sure. The 1887 act also says that, after a state makes a “final ascertainment” of its results, the governor must send a certification to the Archivist of the United States. If the governor refused to do so—or sent a certification of a result that conflicted with the legislature’s, or the courts’, determination—would that action invalidate the certification by the legislature? No one knows. In any case, it appears clear that, if a state fails to submit a winner by December 14th, the decision about its electoral votes goes to Congress.
The 1887 act appears to offer some guidance on the question of what Congress might then do—but not much. “I defy you to read the law and understand it,” Foley said. “I’ve been working on it for a decade, and I still don’t understand it completely. It’s just a morass.” The law mandates that both Houses of Congress meet in a joint session—scheduled, this cycle, for January 6, 2021—to certify the Electoral College tally. At that meeting, there can be a challenge to the counting of votes if at least one representative and one senator offer it. At the joint session in 2001, several House members sought to challenge Bush’s victory over Gore, but no senator joined them. Thus, Vice-President Gore, as the presiding officer, was obliged to rule the challenges to his defeat out of order. Michael Moore, in his documentary “Fahrenheit 9/11,” included excerpts from the joint session, using the failure of even a single Democratic senator to challenge Bush’s victory as a symbol of the Party’s spinelessness.
So what happens if, unlike with the 2000 election, at least one senator joins a House member to challenge the electoral-vote results in a state? The law offers minimal guidance. One thing is clear: the House and the Senate would have separate proceedings, and vote separately, on which electors to seat in the contested states. With the result of the election on the line, the level of contention would be extraordinary. Would there be hearings? Would witnesses testify? How long would the House and the Senate debate the issue? No one knows.
The complexities accumulate. It’s possible that some states, if their results are tied up in the courts, might not submit any electors to Congress. What happens if there are fewer than five hundred and thirty-eight electoral votes cast? As Charles Stewart III, a professor of political science at the Massachusetts Institute of Technology, said, “Do you need a majority of those cast, or do you need two hundred and seventy? That is not clear.” And what if the House approves one slate of electors and the Senate approves a different one? Since Democrats now control the House and Republicans the Senate, such a scenario seems possible, even likely. According to Stewart, in the event of a conflict between the House and the Senate over which slate to approve, the Electoral Count Act says that the one signed by the governor of the state prevails. (If the Democrats retake the Senate in November, the chances of conflict between the House and Senate will be lessened, because this vote will occur after the third of the year, when the new senators will be seated.)
Another hypothetical: after the House and the Senate rule on the challenges, neither candidate obtains either two hundred and seventy electoral votes or a majority of those votes cast. Then the final decision would belong to the House of Representatives. The vote in the House would take place not in the usual fashion, by members of Congress, but, rather, by delegation. In other words, each state would get one vote in the House, based on a majority vote of the members of the state’s delegation. If it comes to this, the result seems clear. Republicans control twenty-six delegations in the House, and Democrats control twenty-three. Trump would win the election. “Sometimes, when I think about this stuff, I have to go take a nap, because it’s so convoluted,” Stewart said.
Bob Bauer, the veteran Democratic lawyer, is not inclined to hysteria. “I don’t portray the situation as a catastrophe, because all that does is scare away voters,” he said, of the upcoming election. “But it is true that it’s an unparalleled challenge, because we have a frail election infrastructure in the best of circumstances, and now the pandemic is layered on top.” One of Bauer’s concerns is outside the control of either campaign—that foreign powers would engage in cyberterrorism on Election Day and afterward. “There’s a risk of cyber insecurity, with the possibility that foreign actors will try to interfere with the process,” he said. The specific possibilities include hacking into voter-registration databases and vote-counting software, and a full-fledged attack on the electric power grid. Bauer went on, “But there’s a higher risk that they will try to convince people that they’ve interfered with the process and create confusion that way.”
There’s an extreme imbalance in party resources when it comes to information about possible foreign interference, because the President controls the nation’s intelligence apparatus. In a public statement on August 7th, the Office of the Director of National Intelligence asserted that China, Russia, and Iran were already attempting to interfere in the election. Russia’s extensive efforts on Trump’s behalf in 2016 have long been documented, and, according to the statement, they are continuing in 2020: “Russia is using a range of measures to primarily denigrate former Vice President Biden.” Other possible foreign efforts “seek to compromise our election infrastructure for a range of possible purposes, such as interfering with the voting process, stealing sensitive data, or calling into question the validity of the election results.”
Later that month, the Trump Administration shut down some access to information about these foreign efforts, asserting without evidence that there had been leaks in previous briefings. In a series of letters to congressional leaders on August 29th, John Ratcliffe, whom Trump recently named the director of National Intelligence, after his service as a Republican representative from Texas, announced that he would cease in-person briefings about “election security, foreign malign influence, and election interference,” and instead supply only written reports. Democrats were indignant about being unable to question intelligence officials before the election. “President Trump, through his hand-picked DNI—chosen for loyalty, not experience—is attempting to deprive Congress of the information they need to do their part,” Biden said in a statement. “There can be only one conclusion: President Trump is hoping Vladimir Putin will once more boost his candidacy and cover his horrific failures to lead our country through the multiple crises we are facing.” Last week, Ratcliffe reversed course and agreed to provide some in-person briefings to Congress, but Democrats will still head into the election substantially in the dark about how foreign powers may attempt to manipulate the outcome.
As Election Day approaches, the President has escalated his level of incitement. With the death of Supreme Court Justice Ruth Bader Ginsburg, last week, a battle with the Democrats in the Senate is almost inevitable. Trump has already moved from allegations of fraud to intimations of unlawfulness and violence. “Gotta be careful with those ballots,” he said on September 8th, in a speech in North Carolina. “Watch those ballots. I don’t like it.” He continued, “Be poll watchers when you go there. Watch all the thieving and stealing and robbing they do.” Trump has advised his supporters to vote twice—once by absentee and once at the polls, to make sure their votes count. (This would be a crime.) He has expressed sympathy for the anti-Black Lives Matter counter-protesters who fired paintballs at their adversaries in Portland, and has defended Kyle Rittenhouse, the pro-Trump vigilante who is accused of killing two protesters in Kenosha, Wisconsin. Trump also retweeted a prediction that political unrest “could lead to ‘rise of citizen militias around the country.’ ” In light of these provocations, it seems that anything short of a landslide for either Biden or Trump could lead to chaos. It’s unsurprising that, when the Transition Integrity Project, a group of a hundred bipartisan experts, ran a series of simulations, they concluded that “the potential for violent conflict is high, particularly since Trump encourages his supporters to take up arms.”
One Republican, perhaps the one most knowledgeable about how elections really work, has decided that Trump has gone too far. Earlier this month, Benjamin Ginsberg, the scourge of the Gore forces in Florida, wrote an op-ed in the Washington Post, calling out Trump’s baseless provocations about the election. “I spent 38 years in the GOP’s legal trenches,” he wrote. “I was part of the 1990s redistricting that ended 40 years of Democratic control and brought 30 years of GOP successes in Congress and state legislatures. I played a central role in the 2000 Florida recount and several dozen Senate, House and state contests.” Ginsberg denounced Trump’s encouragement of double voting and rejected the President’s claim of widespread voter fraud: “The truth is that after decades of looking for illegal voting, there’s no proof of widespread fraud. . . . Elections are not rigged.”
Ginsberg told me, “I was a tough partisan and proud of it—but I think it’s important for Republicans and Democrats to look at the real evidence of what’s happened over forty years. Unfortunately, Republicans have gotten away from that during this cycle.” For decades, Republican candidates depended on Ginsberg for his counsel and his advice, but there is every sign that he, like all apostates from the cause of Trump, will be ignored and scorned by the President and his allies. Instead, it will be Trump’s party that sets the path to Election Day, and beyond.
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