#2DaysOut: “Ten Things to Watch for on (and after) Election Day” (Dan Tokaji)

The following symposium contribution is from Dan Tokaji (Wisconsin):

It’s been an election year like no other.  The COVID-19 pandemic has dramatically altered the way that we register and vote, in ways that will have lasting effects.  The United States is also facing up to a long legacy of unjustified official violence toward people of color, especially black men, which continues to this day as exemplified by the recent killing of George Floyd and shooting of Jacob Blake.  These events have altered our political discourse in ways that are likely to have lasting effects. All this is taking place in a hyperpolarized environment where not only our policy preferences but also our understanding of basic facts differs dramatically along party lines. There is a palpable feeling of fear, even alarm, among many voters across the political spectrum.  The country feels very much like a tinderbox, in which the tiniest spark might lead to an explosion.

In this fraught environment, it’s especially important that election law experts provide a steady and trustworthy voice, focusing public attention on the facts and the law and trying to avoid the hyperbolic rhetoric that abounds elsewhere.  Toward this end, I’ll highlight here the top issues on which we should focus our attention Tuesday, and perhaps in the days and weeks that follow.

1.  Disinformation:  We’ve seen a surge in false information during this election cycle, on everything from the candidates to the election process to voter fraud.  The proliferation of inaccurate and misleading information may or may not change the results of this year’s presidential, but it certainly has a corrosive effect on our democracy, which depends upon a shared commitment to truth.   Lawyers, legal scholars, and judges should play an especially important role in affirming our commitment to the basic proposition that facts matter.  There will be lots of false information circulating on and after Election Day.  So it’s important that we be wary and make sure that anything we read is reliable before passing it along to others.

2. Registration Problems:  Many of the usual ways in which people register and update their registration have been unavailable this year due to the pandemic.  That includes face-to-face interactions at motor vehicle offices and in registration drives.  Our election system usually depends on these in-person registration efforts, not only to bring new voters into the system but also to allow existing voters to update their information.  New registrations have been down in some states, although the expansion of online voter registration, now available in 40 states, has helped pick up the slack.  But there are still would-be voters who haven’t registered or updated their registration.   In states that have election day registration – including Wisconsin, a swing state and my new home – it’s easy for eligible citizens to vote, even if they haven’t registered or updated their information in advance.  In other states, we can expect to see more provisional ballots, particularly from those who have moved or been removed from the rolls.   Those provisional ballots can wind up being the subject of litigation if an election is close (see #6).

3. Last-Minute Directives:   This is something that I really hope we don’t see between now and Tuesday.  During the primary season, some state executive-branch officials postponed or cancelled in-person voting in their primary elections.  These orders were issued very shortly before Election Day, sometimes with dubious legal authority, by both Democratic and Republican officials.  Postponement isn’t a viable option in a presidential general election, but we could see state or local officials try to alter the voting process very close to an election, especially in places where COVID-19 cases are spiking.  That would be disruptive for voters and poll workers.  It also raises difficult rule-of-law questions, particularly when emergency orders are issued without clear legal authority. 

4. Conflict at the Polls:   In every recent election cycle, there have been concerns that some citizens will be threatened or intimidated when they try to go vote.  These worries are amplified in this election cycle, given the hyperpolarized environment in which we find ourselves.  Of particular concern is the possible presence of private individuals with firearms at or near polling places.   In elections past, reports of intimidating behavior at the polls have sometimes been exaggerated, turning out to be less dramatic or widespread than was apparent at first glance.  This is one area where reporters and experts should be especially cautious since apocryphal stories have the potential to scare people away from voting.  Federal and state laws prohibit voter intimidation.  Voting rights lawyers should be prepared to go to court, if threats or violence toward voters materialize on Election Day. 

5. Poll Workers:   Our election system depends on the hundreds of thousands of people who sign up to serve as poll workers.   In an ordinary election year, many of our poll workers are retirees.  This year, many of the usual poll workers – including people who are older or otherwise at greater risk from COVID-19 – are reluctant to serve.  Fortunately, it appears that well-organized efforts to recruit other poll workers have largely succeeded.  Moreover, the fact that so many more people have voted early this cycle should relieve some of the Election Day pressure on the polls, thus lessening in the impact of poll workers shortages that are sure to exist in some locations.  As in every election cycle, we can expect to see some problems on Election Day, including scattered polling places opening late, voting machine problems, and lines at some locations.   And this year, some voters won’t observe the precautions – like wearing a mask and maintaining social distancing – that they should (more on that in #10).  But here too, we must be careful not to exaggerate, as breathless accounts of polling place glitches have the potential to discourage people from voting.  

6. Counting Absentee Ballots:  The biggest change we’ve seen this year is the dramatic increase in the number of people voting early.  As of this morning, Michael McDonald calculates over 93 million early votes, over 34 million of which have been cast in person and 59 million returned by mail.  Together, these early votes are more than two-thirds of all the votes counted in the 2016 general election.  Every state has its own rules for processing absentee ballots, some of which have changed in this election cycle.  The National Council of State Legislatures has helpfully compiled all the states’ policies here, and 538 has this nifty graphic on how much of the vote is expected to be counted on Election Night.  The counting of absentee ballots is one of the two big things (along with the counting of provisional ballots) that parties and candidates are likely to fight over, in the event of a close election.   So the larger number of absentee and provisional ballots in this cycle can be expected to expand the margin of uncertainty and the margin of litigation.   

7.  Canvassing and Recounts:  Often as it’s been said, it still bears repeating:  election results aren’t final on Election Night, even when there’s no doubt as to who will win.  All the states have their own process and timeframe for canvassing election results, conducting recounts, and certifying the winner.   The process may be more challenging this year – not only for the presidential election but also for all the other federal, state, and local races on the ballot – due to the larger number of absentee and possibly provisional ballots.  And as always, we can expect to see litigation over close races, in state court and possibly federal court.

8. U.S. Supreme Court Intervention:  Twenty years ago, the U.S. Supreme Court effectively decided the winner of a presidential election with its opinion in Bush v. Gore.  Although it’s not likely that this scenario will repeat itself this year, the possibility has materially increased over the past couple weeks.  The main question that’s teed up for review is whether  state courts may rely on state constitutional law – including protections for the right to vote – in cases involving federal elections.  As Rick Hasen notes, there appear to be four justices who think that state courts’ reliance on state constitutional law instead of a state statute violates Article I or Article II of the U.S. Constitution.  Such a ruling would be disastrously disruptive to our election system, effectively requiring that every state have two sets of election rules – one for state and local elections governed by the state constitutions and statutes, and the other for federal elections governed only by state statutes.  The Court is likely to address this issue at some point, and all eyes will be on new Supreme Court Justice Amy Coney Barrett who likely holds the deciding vote.  Let’s hope this isn’t how this year’s presidential election is decided.

9. Accepting the Results:  At some point, the dust will clear.  There’s a small possibility that the presidential election could get resolved by the Supreme Court.  It’s also possible, but also unlikely, that state legislatures or Congress could get into the mix.  But whether it’s on Election Night or weeks later, there will be a winner.  And when that happens, there’s a real question – more so now than in any election in my lifetime – whether the losing side will accept defeat.  We’ve seen claims of stolen elections on both sides in past election year.  But with mutual distrust among Democrats and Republicans at such historically high levels, those concerns are elevated this year.   I believe that our institutions are still strong enough to allow an effective (if not entirely smooth) transition of power, even if one side refuses to accept the results.  But that would be a major test of our system. 

10.  Post-Election Pandemic Spikes:  Though I’ve mostly tried to refrain from making predictions about what will happen, I’ll end with this one:  COVID-19 cases will spike in some communities after the election.  To be clear, elections can be conducted safely during this pandemic if appropriate precautions (especially face coverings and physical distancing) are observed.  In fact, there’s evidence that this year’s primary elections didn’t worsen the pandemic.  The problem is that mask-wearing has become ideological.  Some people will refuse to wear masks when they go vote, and poll workers may be unable or unwilling to enforce compliance.  We’re already seeing an increase in COVID cases in many states, including some swing states where turnout is likely to be high. Though I really hope to be proven wrong, I expect compliance to be low in some places, causing new cases to spike after the election.  That doesn’t mean you should stay home on Election Day.  It does mean you should be careful, especially if others aren’t.

So go vote!

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