All posts by Dan Tokaji

#ELB20th: Election Law in the Age of Trump

A few months ago, Rick and others celebrated the 20th anniversary of this blog with a series of guest posts. Serving as dean of a law school doesn’t usually allow me to keep up with day-to-day developments in the field as I once did, so I wasn’t able to write something at the time. But finishing up three weeks in the ELB driver’s seat gives me an opportunity to offer some reflections on where we’ve been, where we are, and where we might be going.

The first observation is that Donald J. Trump continues to dominate daily news in the field. Over the past three weeks , 70 ELB posts have mentioned Trump’s name, an average of over three each day. By way of comparison, I count only 13 that mention Biden and just 8 that mention DeSantis. So like it or not, we in the field of election law are still living in the age of Trump, more than two and one-half years after he reluctantly relinquished the presidency.

Now of course, deciding what news is worth including on the blog involves subjective judgment. Like others who started out studying election law, my interests have gravitated toward structural weaknesses in American democracy over the years. That includes political polarization, persistent racial divisions, and rising economic inequality, as well as the vulnerability of electoral institutions to partisan manipulation. I’m also worried by the increasing receptivity toward politically motivated violence, most graphically illustrated by the events of January 6, 2021.

It bears emphasis that much of the current coverage of Trump is involuntary, on his part. Over the past few weeks and months, we’ve seen numerous charges and convictions for people associated with the attack on the Capitol during the counting of electoral votes. And at times, it seems as though the walls are closing in on Trump himself. The pending cases against him — not to mention a potential new federal indictment over his role in January 6 and another potential criminal case in Georgia — will make for a busy campaign/courtroom calendar in 2024. As the recent coverage of Trump’s legal expenses reveals, it’s becoming difficult to distinguish his attempt to regain the presidency from his attempt to fight criminal charges against him.

The proliferation of pending and potential criminal charges against a former/aspiring President present an unprecedented challenge for American democracy. That’s all the more true in light of the growing body of evidence that all the criminal and civil cases against him aren’t hurting his standing with the Republican primary electorate and may actually be helping.

Amidst all this, it’s easy to lose sight of the considerable progress that has been made over the past twenty years. That’s particularly true in the area of election administration, which has been a main focus of my academic career. I became a law professor in 2003, just a few months after Rick started this blog. Hard as it may be to believe now, not many scholars were writing about the “nuts and bolts” of elections — things like voting technology, voter registration, and voter ID — at the time. Bush v. Gore was still a new decision, and the Help America Vote Act had just been enacted into law. Back then, it was mostly left-leaning Democrats who were worried that electronic voting machines would steal their votes. (How things have changed.)

When it comes to election administration, there is much to celebrate in what’s happened over the past two decades. We’ve moved to more reliable voting technology and statewide voter registration lists. The professionalization of election officials has increased dramatically over the intervening years. A testament to that fact is the miracle of the 2020 election, as Nate Persily and Charles Stewart have called it, when the country successfully managed a massive shift toward remote voting in the midst of a global pandemic and record turnout. Our judicial system also held up well to the challenge that the 2020 election posed. Judges across the ideological spectrum — including both Republican and Democratic appointees — rejecting the specious legal cases brought by Trump’s allies (traced in my contribution to this book on January 6). Some of those lawyers are now facing the consequences of their actions.

The tragedy of the 2020 election, borrowing again from Persily and Stewart, is that so many Americans believed — and continue to believe — that the election was stolen. Not only has there been a massive loss of trust in our election system, but we’ve also seen escalating threats toward the people responsible for running our elections. That’s led many of these dedicated public servants to conclude that it’s just not worth it, leaving their jobs in large numbers. This too is a tragedy, especially given the progress is professionalizing election administration over the past twenty years.

Despite all this, I’m hopeful about the future of election law and, more broadly, of our democracy. Although we’ve lost some great election officials, public awareness of the serious challenges that our system faces has increased dramatically. I’m talking not only about the risk of election subversion — the tag of so many recent ELB posts — but also about gerrymandering, money in politics, and the institutions responsible for running elections. The election law community, including both academics and practitioners, has never been more robust. I’m not sure of the solutions to the enormous challenges we face. But the diversity of new voices in the field increases my confidence that we’ll find a way through them together.

I’ll close this post, and my stint as guest blogger, with a big “thank you” to everyone else in the election law community. Thanks especially to Rick for keeping this blog going over the past twenty years. And to all of you for caring enough about our democracy to keep reading and responding.

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“US election officials are quitting at an alarming rate”

The Guardian:

Over the last four years, at least 40 of North Carolina’s 100 counties have had to replace their election directors due to retirements, resignations and other career moves. Patrick Gannon, a spokesperson for the state Board of Elections, said that’s a significantly greater level of turnover than the state has seen before.

Similar trends hold true across the rest of the United States. A Boston Globe analysis of data from the US Vote Foundation found that county election official turnover had spiked after the 2020 election in battleground states like Arizona, Pennsylvania and Georgia. According to a 2022 survey by the nonpartisan Brennan Center for Justice, 20% of officials serving at the time said they planned to leave their posts before the 2024 presidential contest.

Those filling the vacancies are entering a high-pressure environment, especially in North Carolina, where Donald Trump defeated Joe Biden by fewer than 75,000 votes. Over 25% of the state’s county election directors have personally experienced threats, according to a March poll by the Massachusetts Institute of Technology Election Data and Science Lab, and 85% say their work-related stress has grown since 2019.

Update: Pat Gannon of the NC State Board of Elections writes to say: “[W]e are now up to exactly 50 of NC’s 100 counties have (or are currently seeking) new election directors since 2019. More than 30 directors will be working their first presidential election in 2024.”

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“Republicans dominate in Florida. Abortion and pot could change that.”

Politico: “National Democrats had all but written off Florida as a lost cause — a former purple state turned solid red by the MAGA movement and Gov. Ron DeSantis. But key party leaders in the state, desperate to turn things around in 2024, are confident that citizen initiatives dealing with abortion rights and recreational marijuana legalization could fuel turnout and boost the party’s chances.”

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“Lawsuit asks Ohio Supreme Court to block abortion rights measure from November ballot”

After an abortion rights amendment qualified to appear on the November ballot in Ohio, a new lawsuit from Republicans asks the Ohio Supreme Court to block the measure.

Filed on Friday, the challenge argues that the abortion rights petition did not identify which state laws would have to be repealed if the constitutional amendment were to be adopted….

The legal challenge came three days after the Ohio Secretary of State Frank LaRose approved the amendment for the November ballot, certifying that the required number of valid signatures were obtained to put the issue before voters.

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“Judge throws out Trump’s ‘big lie’ defamation lawsuit against CNN”


A federal judge on Friday dismissed Donald Trump’s lawsuit against CNN, in which the former president said the network defamed him by associating him with Adolf Hitler.

Trump argued that by using the phrase the “big lie” in reference to his unfounded claim that the 2020 presidential election was stolen, the network created an unfair association between him and the Nazi regime.

Hitler and Nazi minister of propaganda Joseph Goebbels used the term as a propaganda tool that involved repeating a falsehood until the public started to believe it. A quote, “If you tell a lie big enough and keep repeating it, people will eventually come to believe it,” is often attributed to Goebbels, though it’s unclear where the comment came from.

Trump argued that the network’s references to the “big lie” created a “false and incendiary association” between him and Hitler, and caused “readers and viewers to hate, contempt, distrust, ridicule, and even fear” him. But U.S. District Judge Raag Singhal ruled that the comments did not constitute defamation.

You can find the order here and additional coverage from CNN. A highlight from the ruling by Judge Singhal (a Trump appointee): “CNN’s use of the phrase ‘the Big Lie’ in connection with Trump’s election challenges does not give rise to a plausible inference that Trump advocates the persecution and genocide of Jews or any other group of people. No reasonable viewer could (or should) plausibly make that reference.”

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“Plaintiffs in high-profile redistricting case urge judges to toss out Alabama’s controversial congressional map”


In a late-night court filing Friday, the NAACP Legal Defense & Educational Fund and multiple attorneys asked a three-judge panel to direct an official to devise a new map that complies with the 1965 Voting Rights Act.

The plaintiffs in the case said legislators who drew and approved the maps didn’t comply with a court mandate to create a second congressional district where Black voters have an opportunity to elect their preferred candidates.

Jonathan Cervas tweets some highlights of the brief, including its argument that the Alabama plan “raises serious constitutional concerns due to strong evidence it was drawn with the purpose of discriminating against Black Alabamians…”

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“$60 Million Refund Request Shows Financial Pressure on Trump From Legal Fees”


The political action committee that former President Donald J. Trump is using to pay his legal bills faced such staggering costs this year that it requested a refund on a $60 million contribution it made to another group supporting the Republican front-runner, according to two people familiar with the matter.

The decision signals a potential money crisis for Mr. Trump, who has so far refused to pay his own voluminous bills directly and has also avoided creating a legal-defense fund for himself and people who have become entangled in the various investigations related to him.

It comes as Mr. Trump runs a campaign while under indictment in two jurisdictions and, soon, potentially a third, while also paying the legal fees of a number of witnesses who are close to him or who work for him.

In related news, WaPo reports that Trump’s PAC Save America “spent more than $40 million on legal costs in the first half of 2023 to defend Trump, his advisers and others, according to people familiar with the matter, financing legal work that has drawn scrutiny from prosecutors about potential conflicts of interest between Trump and witnesses.”

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Georgia County Approves Automatic Hand Recounts

The Guardian:

A rural Georgia elections office run by Republicans who promote falsehoods about the 2020 election approved a motion on Monday to institute automatic hand recounts for all future elections.

The decision will require elections staff in Spalding county to hand-count each ballot, then compare those vote totals with totals reached by voting tabulation machines provided by the secretary of state. Hand counts slow certification of election results and are less reliable than tabulations carried out by machines….

Outside Georgia, other jurisdictions have tried to move to hand-counting since the 2020 election, including Cochise county, ArizonaNye county, Nevada; and Shasta county, California.

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“Election disinformation campaigns targeted voters of color in 2020. Experts expect 2024 to be worse”


As the 2024 election approaches, community organizations are preparing for what they expect to be a worsening onslaught of disinformation targeting communities of color and immigrant communities. They say the tailored campaigns challenge assumptions of what kinds of voters are susceptible to election conspiracies and distrust in voting systems….

Critics are urging social media companies to invest in content moderation and fact-checking in languages other than English. Government and election officials should also make voting information more accessible to non-English speakers, organize media literacy trainings in community spaces and identify “trusted messengers” in communities of color to help approach trends in misinformation narratives, experts said.

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“Kentucky’s Governor Race Could Unwind Voting Rights Restoration”

Bolts: “At issue is an executive order Democratic Governor Andy Beshear issued in 2019, on his third day in office, that has restored the voting rights of at least about 180,000 people, or five percent of Kentucky’s adult population…. The fate of that order rests on the next governor’s goodwill, and each of the state’s last three governors have used their executive power to flip their predecessor’s policy on this issue. Beshear, a Democrat, is now running for re-election in this typically-red state against Republican Attorney General Daniel Cameron.”

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“The Mystery of How Tim Scott’s Campaign Is Spending Its Millions”


[Sen.] Scott entered the 2024 race with a war chest of $22 million, and his campaign raised $5.8 million from April through June. In that same time, he laid out about $6.6 million, a significant clip — but most of it cannot be traced to an actual vendor.

Instead, roughly $5.3 million went to two shadowy entities: newly formed limited liability companies with no online presence and no record of other federal election work, whose addresses are Staples stores in suburban strip malls. Their minimal business records show they were set up by the same person in the months before Mr. Scott entered the race….

Federal law requires campaigns to disclose their spending, including itemized details of their vendors, as a safeguard against corruption and in the interest of transparency. But as in many aspects of campaign finance law, campaigns have found workarounds, and the body that oversees such regulations, the Federal Election Commission, is perpetually hamstrung by partisan deadlock.

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Federal court dismisses lawsuit challenging Illinois mail ballot deadline

Democracy Docket: “a federal judge in Illinois tossed out a lawsuit brought by three Republicans — including the current representative for the state’s 12th Congressional District, Michael Bost (R) — alleging that the state’s mail-in ballot receipt deadline violates federal law and burdens the right to vote under the First and 14th Amendments.” Illinois allows for ballots postmarked by Election Day and received within two weeks to be counted.

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“A Black prosecutor was elected in Georgia – so white Republicans made their own district”

The Guardian reports on a different kind of circuit split:

Since 1870, the Augusta judicial circuit has been home to the criminal justice system of a three-county area on Georgia’s border with South Carolina. In that time, no African American has been elected district attorney of the circuit – until 2020, when a Black lawyer named Jared Williams upset a conservative, pro-police candidate with just more than 50% of the vote.

But that historic win was short-lived. The day after his election, a lawyer and state lawmaker in the area proposed something unusual: that the circuit’s whitest county separate itself from the Augusta circuit, creating a new judicial circuit in Georgia for the first time in nearly 40 years…

The split caused the disenfranchisement of the old circuit’s Black voters, voting advocacy organization Black Voters Matter Fund contended in a lawsuit that was eventually dismissed by the state supreme court. Those voters had chosen Williams, who ran on a pledge to uphold criminal justice reforms such as not prosecuting low-level marijuana possession, a crime which disproportionately affects Black and minority communities.

Instead of Williams, Black voters in Columbia county got as their prosecutor Bobby Christine, a Trump-appointed US attorney who was appointed by the Republican governor, Brian Kemp. Christine then chose Williams’s opponent as his chief deputy.

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