My Hope for Irrelevance By Next Weekend

There’s a certain adrenaline rush that comes with working in the area of election law in the period before presidential elections. That’s especially true if, like me, you do a lot of public speaking and media. It’s great to be able to help educate the public and be part of the conversation on our democratic practices and challenges.

Although the overwhelming emotion I have felt before election days in the past is exhaustion, in the last the last few cycles that emotion has been stress and anxiety. Each day I spend much of my days and evenings reading and writing about threats to democracy and fair elections. It’s the work of the Safeguarding Democracy Project and its my passion for voters’ rights. And I have been profoundly worried not only about deterioration of voting rights for some voters in the U.S. but also the keen risks of election subversion which emerged in 2020. Sometimes it is hard to take.

Those of us in the field have long joked about the Election Administrator’s prayer: Lord, let this election not be close. But it’s especially true this time, with one of the candidates constantly spreading false claims of stolen or rigged elections, and convincing millions of his followers that the last election was stolen and the upcoming one will be too, unless he wins. It’s a recipe for political instability and potentially even violence.

There are three possible outcomes on Tuesday night: a blowout for one of the candidates, a Bush v. Gore-type extremely close election that will come down to trench warfare between the parties that lasts for weeks, and a pattern like 2020, where it takes a few days to determine the winner and the race is called by next weekend.

it’s already baked into our thinking that Donald Trump will not concede defeat no matter what happens: that, itself, is astounding, as is the fact that millions of people would believe him despite the evidence to the contrary. It shows how in the current era of cheap speech it is so much easier to undermine peoples’ confidence in free and fair elections even though election administrators generally do an honest, competent, and heroic job in running our elections.

If the election is a blowout in Trump’s favor or if he narrowly ekes out a win, I suspect we won’t hear much about stolen elections for a while. Democrats may protest, but they won’t try to block Trump’s return to power. The question will then be about free and fair elections in 2026 and 2028.

If we are in a Bush v. Gore scenario, it will be much uglier than in 2000, with all kinds of election disinformation flying, supercharged not only by Trump but by Elon Musk, through his PAC and social media platform. The good news is that the chances of this happening are very small. It would have to come down to a few hundred or maybe a few thousand votes in a swing state essential to the outcome of the election.

If Harris ekes out a win following a blue shift in Pennsylvania, with the results not announced until late in the week, it will be ugly too. And then the question will be if Trump will try a litigation and political strategy, as he did in 2020 to try to overturn the results. If he does, he will almost certainly not succeed. But it will cause more civil strife and undermining of confidence in American elections.

If Harris wins in a convincing electoral college vote that can be declared by AP and the networks by Wednesday, then Trump’s attempt to try to victory and build legal and political momentum will be much more likely to fail.

I don’t know what the next week will bring, but for the sake of the country, I hope that most Americans won’t have to think about the intricacies of election law and how our peaceful transitions of power work for some time.

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“Why Pennsylvania’s unusual voting laws make it ripe for rigged election claims”

Jane Timm for NBC News:

With Pennsylvania expected to be a close and crucial state in the 2024 race for the presidency, it’s unusual election laws are again under the microscope.

First, there’s the counting. The state doesn’t have early voting — instead offering the time-consuming and paperwork heavy option of on-demand mail balloting. It also doesn’t process its mail ballots ahead of Election Day.

So, in the hours after polls close on Election Day, when many battleground states will be reporting their early, mail and Election Day totals, Pennsylvania will be counting ballots around the clock in a mad dash to catch up.  

Then there’s the “fixing” or “curing” of ballots with minor errors, such as a mail-in ballot mixing a signature. If a ballot has errors, each county in the state decides on its own whether it will let voters “fix” them, creating significant differences in voting policy throughout the state. (Most states have a statewide policy for curing ballots.)

And finally, after the ballots are counted, there can be challenges. Pennsylvania laws give residents a spate of ways to challenge and delay certification of the results with recounts, appeals, and litigation.

Election experts say Pennsylvania’s laws make it fertile ground for rigged election claims to flourish. They also stressed that there is little reason to believe that unsubstantiated voter fraud claims—and any lawsuits associated with them—will actually stop the certification of the results.

“The Pennsylvania legislature had multiple opportunities to clarify and improve the state’s election law,” said Nate Persily, an NBC News election law expert and professor at Stanford Law School. “It deliberately chose not to. The gaps in the law provide a vacuum that gets filled with conspiracy theories and require the courts to bring coherence to an incoherent regime.”

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NYT: “Trump Tells Supporters He ‘Shouldn’t Have Left’ the White House; Donald J. Trump, who sought to overturn his loss of the 2020 election, also joked that he didn’t mind if reporters were shot.”

NYT:

Former President Donald J. Trump told supporters on Sunday that he “shouldn’t have left” the White House at the end of his term during an end-of-campaign rally where he vented angrily about a spate of new public polls showing him losing ground to Vice President Kamala Harris and joked about reporters being shot at.

The former president also described Democrats as a “demonic” party at the rally, at an airport in Lititz, Pa., his first of three swing-state stops planned for his second to last day on the campaign trail. Mr. Trump’s voice was audibly hoarse and his speech sluggish as he made unfounded claims about election interference. He praised himself for ditching his prepared remarks, saying it meant the “truth” could come out….

“I shouldn’t have left, I mean, honestly,” Mr. Trump continued. He added, “We did so well, we had such a great—” and then cut himself off. He then immediately noted “so now, every polling booth has hundreds of lawyers standing there.”

The remark echoed what Mr. Trump told some aides within days of his 2020 election loss: that he wasn’t going to leave the White House.

“I’m just not going to leave,” Mr. Trump told one aide. He told another, “We’re never leaving,” and added: “How can you leave when you won an election?”

Mr. Trump never conceded the race to Mr. Biden. And his denials that he had lost that election were issued by himself and a ring of mostly outside advisers and lawyers, who pushed every avenue possible to overturn President Biden’s victory. Those efforts culminated in an attack on the Capitol by a pro-Trump mob on Jan. 6, 2021, as Mr. Biden’s electoral college victory was being certified….

He claimed that voter machines would be hacked, that elections needed to be called by 11 p.m. on Tuesday night and that efforts to extended polling hours to allow more people to vote — something his own party has pushed for in Pennsylvania — were tantamount to fraud.

Mr. Trump, while riffing, also pointed to the protective glass encasing him now at outdoor rallies since he survived the assassination attempt in Butler. “To get to me, somebody would have to shoot through fake news, and I don’t mind that much, ’cause, I don’t mind. I don’t mind,” he said, as some in the crowd laughed and howled.

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“Canvassers for Elon Musk’s America PAC Were Fired and Stranded in Michigan After Speaking Out”

Wired:

Standing next to her hastily packed suitcase in Michigan’s Macomb County Wednesday night, Tyra Muldrow had a bad feeling in her gut.

“I have this eerie feeling that I need to get the hell up out of there,” says Muldrow, a 20-year-old Black woman from Florida. She was in Michigan as a door knocker, hired by a subcontractor for Elon Musk’s America PAC operation to turn out the vote for Donald Trump in the heavily contested working-class suburbs of Detroit.

Muldrow and the rest of her canvassing group of roughly a dozen people had just been fired en masse, after WIRED reported that they had been tricked and threatened as part of Musk’s get-out-the-vote effort. Speaking publicly for the first time about her ordeal, Muldrow says that the canvassers in her group were fired with little explanation beyond a complaint that someone had spoken with the press. Many, including her, were still owed money. Muldrow had to find her own way home; others are still stranded in Michigan.

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“How a New Mexico county pulled back from the brink of election chaos”

WaPo:

Sandoval County has overhauled the hand-counting of absentee ballots, reduced its number of ballot drop boxes and curtailed their hours of access. Not only have Brady-Romero and Dominguez, her chief deputy, spent many hours answering questions from a local activist group that has promoted debunked allegations of widespread voter fraud; they have hired two of the group’s leaders to work the polls on Tuesday.

“When I’m here in this office, I’m not a Democrat and I’m not a Republican. I’m just a public servant,” Brady-Romero said. “And I include the public to come and learn, especially with all the misinformation that’s out there.”

The détente in Sandoval mirrors a statewide trend at odds with developments elsewhere in the country. As machetes are brandished at Florida polling sites and ballot drop boxes in the Pacific Northwest go up in flames, in New Mexico — once a hotbed of right-wing antagonism toward the local and state officials who oversee voting — something remarkable is happening: a calm election.

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“Former Trump White House counsel Don McGahn sets post-election talk to anti-Trump conservatives”

Politico:

Don McGahn, Donald Trump’s first White House lawyer and architect of his judicial appointment strategy, is turning heads in the legal world after agreeing to speak at a gathering of never-Trump conservatives the week after the election.

McGahn is set to join a Nov. 13 panel hosted by the Society for the Rule of Law, a group founded by vocal anti-Trump lawyers like George Conway, retired federal appellate judge Michael Luttig and former Rep. Barbara Comstock (R-Va.), all of whom have all labeled Trump a danger to the republic.

Asked about the appearance, McGahn said via email that he was “just doing a panel” and called it an “academic” event. He didn’t directly address a question about who he’s supporting in the presidential race, but suggested that the meeting’s organizers are likely to be unhappy with the outcome of the election.

“I think those folks in that camp will be disappointed next week, whereas I’m feeling alright right now,” McGahn said.

The society’s executive director, Gregg Nunziata, confirmed that McGahn is set to speak alongside former White House counsels Bob Bauer, who worked under Barack Obama, and Alberto Gonzales, a Bush-era administration official and former attorney general who recently endorsed Harris….

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“What’s a ‘red’ and ‘blue mirage,’ and how election night vote counts make it hard to tell who will win” (And watch for a potential North Carolina RED shift)

Very helpful analysis by Stephen Pettigrew, Andrew Arenge and John Lapinski of NBC News of the complicated patterns we can expect to see of reported vote totals. Some specifics: North Carolina: Most of the mail ballots will likely be reported first,… Continue reading