Category Archives: Election Meltdown

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

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”

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”

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

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.”

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”

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”

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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“Eastman provides new details of Trump’s direct role in legal effort to overturn election”

From Politico: Attorney John Eastman once again seeks to shield emails and other communication with former President Trump and allies from the select committee. The new filing reveals routine communication “with Trump either directly or via ‘six conduits’ during the chaotic weeks that preceded the Jan. 6 attack on the Capitol.”

The filing also describes the direct role of Trump himself in developing strategy, detailing “two hand-written notes from former President Trump about information that he thought might be useful for the anticipated litigation.” Those notes are among the documents Eastman is seeking to shield via attorney-client privilege. Eastman said he would also speak directly with Trump by phone throughout his legal challenges to the election.

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New Fox Poll Shows Kemp with Comfortable Lead in Polls

A new Fox News poll shows Republican primary voters supporting Brian Kemp by wide-margins. This strikes me as going to the point that it is easier to distrust “other” people’s election systems than one’s own. Even in a swing state, like Pennsylvania and Michigan, that is the case: It is the cities–with all the racial coding–that cannot be “trusted.” The article also reports: “Early voting started May 2 and Georgia voters are turning out in record numbers.”

“Incumbent Gov. Brian Kemp leads former Sen. David Perdue by a 32-point margin in the Georgia Republican gubernatorial primary race, tripling his advantage from March, according to a new Fox News Poll of Georgia Republican primary voters released Wednesday.

Sixty percent of Republican voters prefer Kemp, while 28% go for Perdue (it was 50% vs. 39% in March). Another 8% support either Kandiss Taylor (6%), Catherine Davis (1%) or someone else (1%). Only 3% are undecided.”

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Book Review: “Betrayal: The Final Act of the Trump Show”

The Washington Post reviews ABC newsman, Jonathan Karl’s Betrayal: The Final Act of the Trump Show.

“Karl’s sobering, solid, account of Trump’s last year in office sheds new light on how the man who lost the presidency nearly succeeded in overthrowing the 2020 election. Anyone who thinks that “it can’t happen here,” ought to read this book.”

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Must-Read Jane Mayer on Bradley Foundation Funding Behind Efforts to Undermine Election Integrity and Steal the 2020 Election for Trump: “The Big Money Behind the Big Lie”

No one connects the dots like Jane. What a story.

I’ll have more to say soon about the connection between the false claim that the election was stolen and reliance on the “Independent State Legislature” doctrine as briefly described by Jane.

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My New One in the NY Times on the New Danger of Election Subversion

I have written this NY Times oped. It begins:

A new, more dangerous front has opened in the voting wars, and it’s going to be much harder to counteract than the now-familiar fight over voting rules. At stake is something I never expected to worry about in the United States: the integrity of the vote count. The danger of manipulated election results looms.

We already know the contours of the battle over voter suppression. The public has been inundated with stories about Georgia’s new voting law, from Major League Baseball’s decision to pull the All-Star Game from Atlanta, to criticism of new restrictions that prevent giving water to people waiting in long lines to vote. With lawsuits already filed against restrictive aspects of that law and with American companies and elite law firms lined up against Republican state efforts to make it harder to register and vote, there’s at least a fighting chance that the worst of these measures will be defeated or weakened.

The new threat of election subversion is even more concerning. These efforts target both personnel and policy; it is not clear if they are coordinated. They nonetheless represent a huge threat to American democracy itself.

Some of these efforts involve removing from power those who stood up to President Donald Trump’s attempts to overturn the results of the 2020 election. The Georgia law removes the secretary of state from decision-making power on the state election board. This seems aimed clearly at Georgia’s current Republican secretary of state, Brad Raffensperger, punishing him for rejecting Mr. Trump’s entreaties to “find” 11,780 votes to flip Joe Biden’s lead in the state….

Combating efforts that can undermine the fair administration of elections and vote counting is especially tricky. Unlike issues of voter suppression, which are easy to explain to the public (what do you mean you can’t give water to voters waiting in long lines?!?), the risks of unfair election administration are inchoate. They may materialize or they may not, depending on how close an election is and whether Mr. Trump himself or another person running for office is willing to break democratic norms and insist on an unfair vote count.

So what can be done? To begin with, every jurisdiction in the United States should be voting with systems that produce a paper ballot that can be recounted in the event of a disputed election. Having physical, tangible evidence of voters’ choices, rather than just records on electronic voting machines, is essential to both guard against actual manipulation and protect voter confidence in a fair vote count. Such a provision is already contained in H.R. 1, the mammoth Democrat-sponsored voting bill.

Next, businesses and civic leaders must speak out not just against voter suppression but at efforts at election subversion. The message needs to be that fair elections require not just voter access to the polls, but procedures to assure that the means of conducting the election are fair, auditable and verifiable by representatives of both political parties and nongovernmental organizations.

Congress must also fix the rules for counting Electoral College votes, so that spurious objections to the vote counts like the ones we saw on Jan. 6 from senators and representatives, including Senators Josh Hawley and Ted Cruz, are harder to make. It should take much more than a pairing of a single senator and a single representative to raise an objection, and there must be quick means to reject frivolous objections to votes fairly cast and counted in the states.

Congress can also require states to impose basic safeguards in the counting of votes in federal elections. This is not part of the H.R. 1 election reform bill, but it should be, and Article I, Section 4 of the Constitution gives Congress wide berth to override state laws in this area.

Finally, we need a national effort to support those who will count votes fairly. Already we are seeing a flood of competent election administrators retiring from their often-thankless jobs, some after facing threats of violence during the 2020 vote count. Local election administrators need political cover and the equivalent of combat pay, along with adequate budget resources to run fair elections. It took hundreds of millions of dollars in private philanthropy to hold a successful election in 2020; that need for charity should not be repeated….

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Must-Read Nate Cohn: “Georgia’s New Law, and the Risk of Election Subversion”

NYT Upshot column:

What would have happened if the Georgia secretary of state, Brad Raffensperger, had responded, “OK, I’ll try,” in a January phone call after President Trump asked him to “find” 11,000 votes?

No one can be sure. What is clear is that the question has been overlooked in recent months. Public attention has mostly moved on from Mr. Trump’s bid to overturn the election; activists and politicians are focused more on whether to restrict or expand voting access, particularly by mail.

But trying to reverse an election result without credible evidence of widespread fraud is an act of a different magnitude than narrowing access. A successful effort to subvert an election would pose grave and fundamental risks to democracy, risking political violence and secessionism.

Beyond any provisions on voting itself, the new Georgia election law risks making election subversion easier. It creates new avenues for partisan interference in election administration. This includes allowing the state elections board, now newly controlled by appointees of the Republican State Legislature, to appoint a single person to take control of typically bipartisan county election boards, which have important power over vote counting and voter eligibility.

The law also gives the Legislature the authority to appoint the chair of the state election board and two more of its five voting members, allowing it to appoint a majority of the board. It strips the secretary of state of the chair and a vote.

Even without this law, there would still be a risk of election subversion: Election officials and administrators all over the country possess important powers, including certification of election results, that could be abused in pursuit of partisan gain. And it’s a risk that H.R. 1, the reform bill congressional Democrats are pushing, does relatively little to address.

This is an urgent topic that is analytically distinct from the voter suppression concerns with the Georgia law. Although Nate links here to my recent WaPo column on what to include in H.R. 1, and suggests that it is missing a requirement of “nonpartisan election administration,” I’m not sure that would be so easy for Congress to write in terms of the structure that would apply, and it would be much harder to implement than for the one time act of drawing legislative districts.

But I have written about this question in my book, Election Meltdown, and some other recent pieces of mine discuss this question of election subversion and what to do about it:

We Can’t Let Our Elections Be This Vulnerable Again (The Atlantic) (suggesting changes to the rules for counting and certifying electoral college votes)

Donald Trump Should Be Prosecuted for His Shakedown of Georgia’s Brad Raffensperger (Slate)

The Only Way to Save American Democracy Now (Slate)

Election law can’t protect democracy if our representatives are lawless (LA Times)

And much more about this coming in my other writings, including my forthcoming “Cheap Speech” book

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