I have written this piece for Slate. It begins:
With early voting already underway, one might think that the rules of the game for November’s election are set, and that it will all just come down to turnout, as the cliché goes. Well, not so fast. In North Carolina, Georgia, and Nebraska, at least, Republicans have been looking for ways to make last-minute changes to the rules to their advantage in the hopes of eking out a presidential victory for Donald Trump that seemed all but assured a few months ago. Although most of them are unlikely to matter, the one in Nebraska just might work.
American elections are uniquely decentralized and directed in part by partisan actors. And those two factors provide the predicate for the voting wars, where political parties drive rule changes that they hope or expect would give their party an advantage in a close election. With enough time, voters adapt to rule changes, and so rule changes often don’t have their intended effects to give one side a leg up.
But changes at the last minute present challenges for voters and for election administrators, not to mention campaigns that are designed under the rules as they are written. Ballots must be printed, poll workers trained, and procedures set to assure transparent ballot tabulation and a fair and accurate vote count….
Among the just-approved changes is one to require a hand count of the number of ballots on Election Day. It’s a change that the Republican state attorney general has said is illegal and one that is opposed by both the Republican Secretary of State Brad Raffensperger and local election officials.
Even if one favors hand-counts of ballots—a procedure that is far less accurate than a machine count followed by a hand audit of a sample of ballots—it is insane to roll out a change this late in the election process. There is simply no time or personnel available to get this done.
It appears likely that Georgia courts will stop at least some of the rules being passed by this Georgia board, a board without experience in election administration and that appears to be motivated only by the basest of partisan motives. But if some of these rules survive, we get to Election Day, and partisans seek to use these rules to block certification of the final result, expect more lawsuits to make sure that certification of the count happens on time as required under Georgia law…..
Ironically, the so-called independent state legislature theory could be what dooms the Georgia hand-count proposal. Georgia’s attorney general argued that the Georgia board’s rules are inconsistent with the rules the state Legislature has mandated for ballot-counting. Under the Supreme Court’s 2023 Moore v. Harper decision, state courts cannot “arrogate” for themselves the power to set the rules for conducting federal elections. So too with (Trumpy) state election boards….
If Nebraska but not Maine changes its Electoral College rules, this increases the chances of a 269–269 Electoral College tie. Such a tie would be resolved under special rules in the Constitution’s 12th Amendment where each state’s delegation in the U.S. House of Representatives gets one vote, a voting procedure that is likely to benefit Donald Trump.
The Constitution gives states wide latitude in setting the rules for choosing presidential electors; heck, the United States Supreme Court in the Bush v. Gore case ending the disputed 2000 election and handing the election to George W. Bush wrote that state legislatures could take away voters’ rights to vote for president at all in future elections, and assign the electors directly themselves. So it is hard to see that any federal litigation could stop this change if it is done.
All of this points to an unfortunate and frightening reality: We may have entered a new phase in the voting wars punctuated by last-minute changes in the rules. That would be a serious escalation, and one that stands only to increase bitter partisanship and cynicism about politics being more about gamesmanship than about a fair contest for allocating political power. If Republicans play these games now, it’s only going to escalate on both sides going forward….