Category Archives: Election Meltdown

President Trump Issues Dangerous Executive Order That Would Shift to Presidency More Power Over the Conduct of Federal Elections and Potentially Disenfranchise Millions of Voters

election administration, Election Assistance Commission, Election Meltdown, election subversion risk, Elections Clause, The Voting Wars

I am still making my way through this new Trump executive order on election administration (helpfully posted by Chris Geidner). There is a lot in here, but let me make four initial points as I still digest this.

  1. An executive power grab.This executive order, if it could survive the inevitable judicial challenge, would severely shift power over federal elections into the hands of the Presidency. We’ve talked many times in the past about how limited the President’s power is over federal elections: power is mostly in the hands of states (and substate units like counties), with Congress setting certain rules for the conduct of elections (such as through the National Voter Registration Act of 1993). After the disputed 2000 election, when Congress passed HAVA, it set up an independent bipartisan agency called the U.S. Election Assistance Commission to do certain things like certifying voting equipment and doling out funds to states for voting tech upgrades. Trump’s order in a number of places purports to direct the EAC to do certain things. He doesn’t have that power, unless the courts accept some aggressive version of the unitary executive theory that’s been percolating in other cases. If a President can control the EAC, it could direct the agency to do all kinds of things that could benefit the President’s party. It would flout the bipartisan, balanced approached of the EAC.
  2. Disenfranchising millions of voters. Right now, under the NVRA, any eligible voter can register to vote in any state using a “federal form,” sometimes called a postcard form, that requires the information Congress deemed sufficient to establish eligibility, including citizenship, for voting. The EO would direct the EAC to change the federal form to require documentary proof of citizenship for voting. This would prevent only a tiny amount of noncitizen voter registration but stop millions of eligible voters, who do not have easy access to documents such as passports from registering to vote. Just look at the studies that have been done about the effects of the SAVE Act, currently being considered by Congress, that would do similar things. The aim here is voter suppression pure and simple. Even if the EAC has the power to change this form, the question is whether the President would have the power to order it.
  3. Ending the receipt of ballot after election day. The EO would direct the DOJ to take action such as suing states like California to prevent them from accepting ballots received after election day in federal elections. It would also prevent the EAC from giving states that accept later arriving (but timely mailed) ballots any federal money for voting upgrades. It is based upon a bonkers theory about how to understand federal law involving a uniform election day (a bonkers theory that unfortunately has been accepted by the Fifth Circuit). The EO would try to take the Fifth Circuit opinion nationwide, and have the President order the EAC to do it.
  4. The order would let DOGE/DHS subpoena voting records, in an effort to prove supposed voter registration fraud. DOGE certainly has no power to kick people off rolls. But they could make a lot of noise trying to claim they’ve found fraud when they find that voter registration rolls are not being kept up to date. There was tremendous pushback during the first Trump administration when the Pence-Kobach commission tried to get such records, including pushback from conservative Republican election administrators in the states. We will see what happens this time. (I write about this in my 2020 book, Election Meltdown.)
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Please Stop Wishcasting the Supreme Court into a Decisive Election Role

Bush v. Gore reflections, election administration, election law and constitutional law, Election Meltdown, Supreme Court, The Voting Wars, voting

Justin here.  There’s a tsunami of election litigation cascading through the legal system right now.  It’s producing a lot of public anxiety, in part because it’s designed to produce a lot of public anxiety. 

But none of the current litigation mess is actually seriously destabilizing the 2024 election process.  And absolutely none of it is realistic meaningful fodder for the Supreme Court.

It’s natural to be freaking out.  These elections are incredibly important.  The outcome is likely to be very close.  And the Supreme Court has indulged in some questionable jurisprudence of late, including historic cases involving one of the contenders. (I’m looking at you, Trump v. US).   In a last-minute decision, they’ve even (maybe) deployed a made-up equitable judicial doctrine meant to stop unwarranted last-minute election changes to block implementation of a very real federal law meant to stop unwarranted last-minute election changes.  Sometimes, it’s true, up is down.

So it’s understandable to combine all of these thoughts: to think that the current electoral litigation morass is just prelude for the Supreme Court to go full Godzilla in the aftermath. 

But wishcasting or doomcasting the Supreme Court into a decisive role in the 2024 election is at this point just indulgent dystopian fiction.  That’s not how any of this actually works.

There are three types of election lawsuits out there right now.  First, an increasingly vanishing handful of cases in a few states over limited election procedures might still yield a result in the next few days.  But as Derek has highlighted, these cases hold relatively few ballots in the balance.  As important as they are to the individual voters involved, they’re not going to change a result before the election.  And that means they’re not going to change a result after the election either.

Second, there are a handful of cases with real arguments over significant issues that have yielded an answer effectively locked in for this election.  But they’re now out of time.  The fighting will continue — some will eventually be upheld, some overturned — but without further impact on the 2024 cycle.

The third category is by far the largest: the slew of cases that. Were. Never. Going. To. Win.

Ever. 

They’re press releases and fundraising emails and vigilante manifestos, with a fancy cover page and a few footnotes, usually brought by the wrong person at the wrong time seeking relief that isn’t available.  Reformat them in Comic Sans and you’ll see them for what they are.  A lawsuit without provable facts showing a violation of actual laws is just a Tweet with a filing fee.  You can tart up numbered paragraphs with all the legalese you want, and it’s still not going to 1) magic you up a unicorn or 2) disappear 200,000 legitimate votes.

It’s alarming to think that even one Justice might want even one of any of these cases.  But it takes five Justices to act.  And there aren’t five Justices who would find any of this remotely tempting.

Take, for example, the Pennsylvania Supreme Court’s decision last week about a voter who submits an (invalid) mail ballot without a “secrecy envelope,” and then votes a (valid) provisional ballot.  The RNC asked the Supreme Court to step in, under the mysterious “independent state legislature” theory.  Could this be the one?

Nope.

The same Justices currently sitting on the Supreme Court effectively killed this notion just 16 months ago.  The pitch then was that the federal Constitution gives state legislatures a special exemption from normal state law (but only for federal elections).  And the Court firmly rejected it, 6-3.  True, the Court said that in addressing a state’s election structure, “state courts may not transgress the ordinary bounds of judicial review.”  But in Pennsylvania, the state courts just interpreted a state statute, using its normal tools of statutory interpretation.  That’s as ordinary as it gets.  The 2023 case was far tastier bait than this, and only three Justices were biting.

And yes, those three Justices noted the argument again yesterday, even as they agreed with the majority in a unanimous statement to send this case where it belonged.  6-3 is still 6-3 is still 6-3.  There’s no reason to think anyone on the Court has changed their minds.

Or, if you prefer, take the Fifth Circuit’s decision last week that Mississippi mail ballots have to be received by election day in order to count.  Is that just a setup for the Supreme Court to step in after the election?

Nope.

The decision is a little nuts.  But even this reactionary appellate panel balked at applying its own logic in the middle of an election with ballots already being cast.  It handed down a decision on what the law means, but deferred a remedy.  This is the Circuit repeatedly chastised of late for decisions too outlandish even for an exceedingly conservative Supreme Court.  Five Justices aren’t going to leapfrog them on the road to Crazytown.

I mean, Cap probably said it best.

There’s a notion that these cases are galaxy-brain traps, “zombie lawsuits” waiting to ravage the post-election landscape.  But there’s a pretty big missing step between here and there: a plausible legal argument sufficient to grant election-swinging relief.  Just as in 2020, courts this cycle in election cases have not simply been indulging what some might presume to be partisan priors: if you look only at the ostensible partisan composition of the bench, you’d get the outcome wrong much of the time.  Instead, courts have largely been acting like … courts, discarding most nonsense as it comes.  There’s more than enough horror going around already this Halloween — we don’t need to indulge the litigious supernatural. 

Speaking of seasonal Gore, I’ll concede that all bets are off if the election comes down to 537 ballots.  At that margin, anything and everything matters: a butterfly ballot flaps its wings in one part of a state and the winds change in another.  But with a margin even slightly bigger than that — a very close election, or even a very very close election — this election isn’t coming down to the lawyers, or the courts, nor even the Supreme Court.  It will, once again, be up to the voters.

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My Forthcoming Yale Law Journal Feature: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

authoritarian threats in US, ballot access, Bush v. Gore reflections, campaign finance, cheap speech, chicanery, Constitutional Right to Vote, election administration, election law and constitutional law, Election Meltdown, election subversion risk, First Amendment theory, legislation and legislatures, political equality, political parties, political polarization, primaries, Real Right to Vote, social media and social protests, Supreme Court, The Voting Wars, voting, Voting Rights Act

I have written this draft, forthcoming this spring in Volume 134 of the Yale Law Journal. I consider it my most important law review article (or at least the most important that I’ve written in some time). It offers a 30,000-foot view of the state of election law doctrine, politics, and theory. The piece is still in progress, so comments are welcome. Here is the abstract:

American election law is in something of a funk. This Feature explains why, what it means, and how to move forward.

Part I of this Feature describes election law’s stagnation. After a few decades of protecting voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law and deprived other actors including Congress, election administrators, and state courts of the ability to more fully protect voters rights. Politically, pro-voter election reform has stalled out in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election law scholarship too has stagnated, failing to generate meaningful theoretical advances about the key purposes of election law.

Part II considers the retrogression of election law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. Courts on a bipartisan basis in the aftermath of the 2020 election rejected illegitimate attempts to overturn Joe Biden’s presidential election victory. Yet the courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Politically, Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate electoral college rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters face a decreased ability to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election law theory and the First Amendment “marketplace of ideas” theory have not yet incorporated these emerging challenges.

Part III considers the potential to transform election law doctrine, politics, and theory in a pro-voter direction despite high current levels of polarization, the misperceived partisan consequences of pro-voter election reforms, and new, serious technological and political challenges to democratic governance. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. The first order of business must be to assure continued free and fair elections and peaceful transitions of power. But the new election law must be more ambitiously and unambiguously pro-voter. The pro-voter approach to election law is one grounded in political equality and based on four principles: all eligible voters should have the ability to easily register and vote in a fair election with the capacity for reasoned decisionmaking; each voter’s vote is entitled to equal weight; the winners of fair elections are recognized and able to take office peacefully; and political power is fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

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Must-read WaPo: “Trump allies test a new strategy for blocking election results”

chicanery, Election Meltdown, election subversion risk

WaPo:

When a member of Georgia’s Fulton County Board of Registration and Elections refused to join her colleagues as they certified two primaries this year, she claimed she had been denied her right to examine a long list of election records for signs of fraud or other issues.

Now the board member, Julie Adams, an avowed believer in the false theory that the 2020 election was stolen from former president Donald Trump, is suing the board, hoping a judge will affirm that right and potentially empower others in similar positions elsewhere to hold up the outcome of elections.

To voting rights activists, election law specialists and Democrats, such actions represent an ominous sign that could presage a chaotic aftermath to the 2024 election. They are particularly worried about the threat of civil unrest or violence, especially if certification proceeds amid protests or efforts to block it.

Adams wrote in her lawsuit that she “swore an oath to ‘prevent fraud, deceit, and abuse’ in Fulton County elections” — duties that she says are not possible without examining the records she has demanded. Her detractors say she is seeking the power to block a victory for President Biden. The Democratic National Committee and state Democratic Party have asked to intervene in the suit, claiming Adams’s actions are part of a coordinated effort by Trump, his allies and the GOP to sow the same kind of doubt in this year’s presidential election that led to the violent attempt on Jan. 6, 2021, to overturn Biden’s first victory.

“They are playing poker with the cards up,” said Tolulope Kevin Olasanoye, executive director of the Democratic Party of Georgia. “They are telling us exactly what they are going to do. We would be foolish if we sat on our hands and did nothing and watched this happen.”

Trump has stated plainly that the only way he can lose this fall is if Democrats cheat. His campaign and the Republican National Committee are spending historic sums building “election integrity” operations in key battleground states, preparing to challenge results in court, and recruiting large armies of grass-roots supporters to monitor voting locations and counting facilities and to serve as poll workers….

But the chaos and confusion that could result from such an effort are themselves a deep concern among voting rights advocates, who believe that unsubstantiated claims of fraud by Trump and his allies are sowing even deeper mistrust in the fall election results than they did four years ago, raising the potential for unrest and even violence on a greater scale too.

“An awful lot of people are looking at a potential parade of horrible scenarios,” said Ben Ginsberg, a longtime GOP election lawyer who is now an anti-Trump democracy advocate. “The number of people who doubt the reliability of elections has only increased. It hasn’t decreased. And that worries me tremendously.”…

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Trump’s Attacks on Judges Fan the Flames

Election Meltdown, ,

A Reuters Special Report analyzes posts on Truth Social since March 1, 2024, showing that Trump’s attacks on the integrity of the judges presiding over his cases are fanning the flames. Presumably, the tweets of his Republican colleagues who have been joining him in court this week will do the same. The images of the posts are worth a look.

“The rhetoric is inspiring widespread calls for violence. In a review of commenters’ posts on three pro-Trump websites, including the former president’s own Truth Social platform, Reuters documented more than 150 posts since March 1 that called for physical violence against the judges handling three of his highest-profile cases – two state judges in Manhattan and one in Georgia overseeing a criminal case in which Trump is accused of illegally seeking to overturn the state’s 2020 election results.

Those posts were part of a larger pool of hundreds identified by Reuters that used hostile, menacing and, in some cases, racist or sexualized language to attack the judges, but stopped short of explicitly calling for violence against them.”

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“Kenneth Chesebro: Second Trump lawyer pleads guilty to conspiracy”

chicanery, Election Meltdown,

BBC News:

Kenneth Chesebro, a former Trump lawyer, has pled guilty in the Georgia case. “Kenneth Chesebro is the third of 19 co-defendants to plead guilty in a deal with Fulton County prosecutors.” His plea follows Sidney Powell’s which was entered yesterday. For analysis see the Atlanta-Journal Constitution, which notes Chesebro is the first defendant to plead to a felony. Early that paper analyzed how Powell’s plea affects the dynamics of the case.

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“What the Courts Would Do if the Succession Fire Played Out in Real Life”

Election Meltdown

I have written this piece for Slate (major spoilers!). It begins:

As election nightmares go, Sunday night’s episode of the HBO series Succession, “America Decides,” was a doozy. It was the most uncomfortable hour of scripted television I have ever watched, and apparently I was not alone in being triggered. But it was not just a “good night of TV,” the ultimate result of which would be that “nothing happens,” as Roman Roy tries to assure his sister Shiv; it is a warning to us that the next election meltdown is always potentially around the corner….

And the episode performed a public service because it shows how, even after 2020, our elections still face serious risks of not producing a fair and democratic winner. Most states, including Wisconsin, do not have laws on the books to deal with election emergencies or dirty tricks like the (maybe arson) fire.

No doubt the candidates and others would turn immediately to state and federal courts for relief. Given the truncated nature of Electoral College voting, the entire dispute would have to be litigated to conclusion in just a number of weeks before Congress convened to count electoral college votes (not in “three months” as suggested in the episode by an ATN executive.) It would be a litigation circus and nightmare in multiple courts with multiple theories.

Wisconsin’s election statutes do not appear to speak to what would happen with the massive destruction of ballots on Election Day. Many states interpret vague election statutes to favor enfranchisement of the voter, but Wisconsin gives less protection for absentee ballots, as the key state Supreme Court Justice in the 2020 case of Trump v. Biden explained. If the justices on the state Supreme Court divided along party lines, as is often (but not always) the case, thanks to the recent election of Janet Protasiewicz, the court likely would side with left-leaning candidate and offer some kind of remedy. Doing so would prevent voter disenfranchisement. If the same scenario were to take place in a potential tipping point state that had a more conservative-leaning state Supreme Court such as North Carolina, however, it could go another way.

To carry on the hypothetical based on the premise of an divided state court with a pro-democracy lean, like in Wisconsin: Perhaps the state court would require a partial revote in Milwaukee, as was suggested by Shiv in the Succession episode and by Claire Woodall-Vogg, executive director of the Milwaukee Election Commission who consulted on the Succession episode. Woodall-Vogg explained that election officials would have records to know whose absentee ballots were destroyed in the fire.

But a revote may violate federal law, which requires that there be a uniform day on election day. (My former dean Erwin Chemerinsky unsuccessfully tried to get a revote in Palm Beach County, Florida in 2000 after many voters were misled to vote for Pat Buchanan rather than Al Gore by the infamous butterfly ballot.) And any order from the state court requiring a revote might violate the so-called “independent state legislature” theory, which if adopted by the Supreme Court would potentially limit state court remedies in federal elections when such remedies are not directly written into a statute. (The scope of this theory is currently before the U.S. Supreme Court in the Moore v. Harper case.)

On the other hand, preventing a revote would clearly violate the equal protection or due process rights of voters protected by the U.S. Constitution’s 14th Amendment. It is easy to imagine a federal district court, particularly one in Milwaukee, saying that the Constitution requires a revote or some other remedy to prevent disenfranchisement.

Ultimately, the case would be decided by the United States Supreme Court, where, in some of the most contentious election cases, the justices split along party lines. Who is to say what this court might do?

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“Georgia lawmakers add to the growing list of bans on outside election funding”

election administration, election law biz, Election Meltdown, legislation and legislatures

NPR reports on the latest measures. 

The real kicker is the last sentence, though: “Georgia lawmakers declined to add the $4 million to replace the [backup power supply] equipment and many of Raffensperger’s other requests in either budget approved this legislative session.”

As I’ve said repeatedly, relying on charity to fund elections should never be Plan A.  But desperately-needed funding has to come from somewhere.  Election spending is infrastructure.  And legislatures that cut off private support at the same time that they refuse to authorize public spending shouldn’t be surprised when the bridge they use to get to work is the bridge that gives out.   

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“How ‘mule watchers’ evolved from a Truth Social meme into a ballot drop box patrol”

Election Meltdown, election subversion risk

NBC News:

A black Jeep crept along Coury Avenue on Wednesday night, rolling by one of the many ballot drop boxes collecting early votes for the midterm elections. 

The driver, a man who declined to give his name, said he had made a pass at the box as part of a volunteer effort to stop a certain type of voter fraud that has captivated the far right, even though there is no evidence of its actually happening. He said it was the second night in a row he had driven by the box, this time after he had just taken his two children, who remained in the back seat, out for a sushi dinner.

He said he hoped to catch someone dropping off “100 ballots or 50 ballots.” No one did.

On Wednesday night, NBC News counted at least nine people watching the ballot drop box in Mesa, a small part of what has become a growing effort by some conservatives to monitor ballot drop boxes in hope of catching election fraud. Some people have stood watch at the drop box while wearing military-style fatigues and masks over their faces, prompting complaints to the Arizona secretary of state. NBC News did not observe any weapons.

No such drop box fraud has ever been found in significant numbers. But that has not stopped conspiracy theories about “ballot mules” — who supposedly secretly drop off hundreds of fake ballots in the middle of the night at drop boxes or election sites nationwide — from taking hold on pro-Trump parts of the internet. The conspiracy theory got its biggest boost from the widely debunked propaganda film “2,000 Mules,” which alleges such mules somehow changed the outcome of the 2020 election, even though repeated hand counts of ballots recertified the results.

The conspiracy theories have inspired action. Users on the Twitter-like platform Truth Social, which is owned by Trump Media & Technology Group, have discussed forming “mule parties” or “drop box tailgates” since at least late July, looking to organize volunteers to surveil drop boxes. On that platform, the former president’s account has shared posts by users advocating for drop box surveillance, including the Mesa drop box.

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GOP Plans to Contest Swing-State Elections, on Tape

chicanery, Election Meltdown, election subversion risk, political polarization

Politico’s Special Report describes the GOP plan for Michigan, which centers on recruiting activists primed to believe election fraud lies as poll workers and connecting them directly to movement lawyers. This appears to be the party’s playbook for other swing states as well.

“Being a poll worker, you just have so many more rights and things you can do to stop something than [as] a poll challenger,” said Matthew Seifried, the RNC’s election integrity director for Michigan, stressing the importance of obtaining official designations as poll workers in a meeting with GOP activists in Wayne County last Nov. 6. 

. . . .

Seifried also said the RNC will hold “workshops” and equip poll workers with a hotline and website developed by Zendesk, a software support company used by online retailers, which will allow them to live-chat with party attorneys on Election Day. In a May, 2022 training session, he said he’d achieved a goal set last winter: More than 5,600 individuals had signed up to be poll workers and, several days ago, he submitted an initial list of more than 850 names to the Detroit clerk.

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“One Colorado Race Will Be About Voters’ Faith in Elections. It’s Not Looking Good.”

election administration, Election Meltdown, election subversion risk

Jennifer Oldham (in Politico) writes this long profile of the struggles facing Colorado’s State Secretary of State.

“Election officials overall, 80 percent of whom are women, reported election misinformation makes their jobs more dangerous, according to a Brennan Center survey of nearly 600 workers.

. . . .

Now, Griswold and other secretaries of state find themselves in a quandary; if they push back on these attacks — on themselves and the voting process in their states — with legislation, their responses are often seen as partisan, too.

Griswold’s office backed a slate of measures, including the law enforcement protection bill. For now, she relies on private guards paid for by her department’s cash fund. Her agenda also included bills that fortify security for poll workers, such as a “Vote Without Fear Act.” The measure, signed recently by Democratic Gov. Jared Polis, bans the carry of a concealed weapon within 100 feet of a drop box or voting center.”

For more on Jocelyn Benson’s (Michigan) experience there is this segment from NBC, which opens “President Donald Trump suggested in a White House meeting that she should be arrested for treason and executed.” Here is a profile of the Republican challenging her.

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“Inside the push that landed a Trump legal adviser on a federal election advisory board”

chicanery, Election Assistance Commission, Election Meltdown, election subversion risk

CNN reports on how individuals who promote baseless voter fraud claims have been promoted for seats on an Advisory Board to the Election Assistance Commission.

“Emails obtained by CNN reveal how the push extended to a federal election advisory board and resulted in the 2021 appointment of one of Trump’s legal advisers who helped his failed efforts to pressure Georgia officials into overturning the state’s election results.The emails, obtained by CNN through a Freedom of Information Act request, show conservatives were working even before the 2020 election to gain a seat for an ally on the advisory board of the Election Assistance Commission, an independent government agency that provides voluntary election guidelines for states.

The story of how Cleta Mitchell — the legal adviser who took part in Trump’s phone call where he asked Georgia’s secretary of state to “find” enough votes for him to win — was appointed to that board underscores how a core faction of Republicans has focused on pushing unsupported claims of widespread voter fraud even before Trump convinced much of the Republican Party to buy into his election lies that the 2020 election had been stolen.”

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“How Trump’s 2020 Election Lies Have Gripped State Legislatures”

chicanery, Election Meltdown, election subversion risk

N.Y. TImes has a new analysis of Trump’s hold over elected officials in the battle-ground states. Support for 2020 election lies is quite strong (44% overall), still the Times notes that it is not unchecked (yet).

“The Times’s analysis also shows that these efforts have encountered significant resistance from key Republican figures, as well as Democrats.” In most states, the lawmakers who challenge the 2020 results do not yet have the votes. So while, they have advanced legislation, including to overturn popular election results, they have been unable to enact them. “And it is only a minority of Republican lawmakers who promote the legally dubious view that they—and not the votes of the people—can select the electors who formally cast a ballot for the president in the Electoral College.”

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