how a free and fair 2024 presidential election could be under threat ⋆

The last time America elected a president, it led to a deadly assault on the U.S. Capitol and a failed coup that gravely damaged the political system and marred the peaceful transfer of power for the first time in U.S. history.

A year from now, the nation’s voters will decide another presidential contest — likely one that pits the same two candidates against each other.

Despite a slew of arrests and felony convictions stemming from the events of Jan. 6, 2021, there’s little sign that those who attacked democracy last time have significantly moderated their outlook.

Former President Donald Trump has warned that, if restored to power, he’ll seek retribution against his enemies. An unrepentant election denier runs one house of Congress. Threats of political violence, now commonplace, are said to have affected key voting decisions made by elected officials. And 3 out of 4 respondents to a recent poll think American democracy is at risk in the election, with nearly a quarter saying patriots may have to use violence to save the country.

“The United States electoral process, and indeed American democracy itself, is under great stress,” warned a September report by a group of election experts for the Safeguarding Democracy Project. “No longer can we take for granted that people will accept election results as legitimate.”

Benson says poll workers breaking the law ‘will be swiftly removed’

Since the tumult of January 2021, politicians, advocacy groups, and media outlets have rightly warned about a range of threats to a free and fair 2024 election — from problems with voter access and election administration to the potential for violence and chaos, or outright subversion of results, in the post-election period.

Perhaps less noticed has been the progress made toward shoring up the system — chiefly in the form of federal legislation making it harder to subvert a presidential election.

That’s why, with a year before voting culminates next November, it’s crucial to take stock of where the nation stands, and to identify where, in the view of election experts and voter advocates, the major vulnerabilities remain.

Election subversion

Perhaps the fear that looms largest in many observers’ minds is a repeat in some form of the failed, multi-pronged plot to overturn the election that culminated with the Jan. 6, 2021 attack — but one that succeeds this time.

For some, the recent ascension of Rep. Mike Johnson, R-La., to the role of speaker of the House adds to the sense of anxiety.

The New York Times has called Johnson “the most important architect” of congressional Republicans’ objections to the 2020 election results. Soon after the election, Johnson rallied 125 other GOP representatives to sign a legal brief arguing that President Joe Biden’s win should be overturned.

The Louisiana Republican then led the effort to get Republicans to refuse to certify the results, and he voted against certification in Arizona and Pennsylvania.

Johnson has never expressed regret for his role in the bid to overturn the results, or acknowledged that Biden was the legitimate winner.

“Johnson’s record on democracy is overtly dangerous, and his newfound power presents an acute threat to American elections,” an Oct. 26 email from a Democratic group of chief election officials, the Democratic Association of Secretaries of State, warned reporters.

There’s little doubt that having a leading election denier running the House is damaging to U.S. democracy in myriad ways — not least by further mainstreaming a dangerous ideology.

But, asked at an Oct. 25 news conference whether he was afraid that Johnson would try to overturn the election, Biden answered: “No.”

“Just like I was not worried that the last guy would be able to overturn the election,” Biden continued. “They had about 60 lawsuits and they all went to the Supreme Court and every time they lost. I understand the Constitution.”

Election law experts largely agree, noting that the speaker has no formal role in the certification process. And, they point out, it takes a full vote of both chambers to actually reject electoral votes — making it highly unlikely to succeed. For all the justified concern about what happened in 2020, no objection to a state’s electoral votes got more than seven votes in the Senate.

As important, experts say, the Electoral Count Reform Act, approved last year in response to Jan. 6, makes it all but impossible for Congress to overturn an election, no matter who’s in charge.

“The ability of Congress to interfere in the certification of a presidential election was already limited,” said Adav Noti, senior vice president and legal director of the Campaign Legal Center, which helped push for the ECRA. With the reform in place, Noti added, ”it’s even harder now for Congress to do anything other than properly certify the election.”

The ECRA, which reformed the outdated Electoral Count Act of 1887, made clear that the vice president’s role in certification is purely ministerial. He or she has no authority to reject a state’s electoral votes, as Jan. 6 rioters hoped to pressure Vice President Mike Pence to do.

More important, the ECRA laid out a judicial process for states to resolve disputes over electoral votes before they reach Congress. And it barred members of Congress from objecting to electoral votes that have already been approved by that judicial process — ensuring, essentially, that federal courts, not partisan politicians in Washington or the states, are in control.

That same provision of the law also addressed another avenue for subversion: State lawmakers or officials could corrupt their state’s vote count long before Congress meets, by changing election rules after the fact or just appointing electors directly.

Trump and his allies schemed to do that in 2020, by pressing legislatures to declare a “failed election” and substitute their own slates. Since then, lawmakers in Wisconsin, North Carolina, and Georgia, among other states, have moved to gain more control over elections, raising concerns about the possibility for state-level subversion.

But under the ECRA, states must appoint their electors according to state laws that existed before the election. That makes state-level subversion much harder.

“There was a fear that state legislatures would come in afterwards and appoint the electors they want anyway,” said Edward B. Foley, an election law professor at Ohio State University and an expert on the Electoral College. “That can’t be done under the ECRA.”

Chaos and delay

But although the law on paper is clear, Foley said he worries about a massive glut of election litigation, all filed in the immediate pre- and post-election period in one close, pivotal state.

The result, and perhaps the intention, could be to overwhelm the courts, potentially delaying decisions until a state risks missing the Dec. 11 “safe harbor” deadline. That could mean its electoral votes might not be counted.

“The American judiciary is not built for thousands and thousands of hours of attention to election matters,” said Foley. “So I think there are reasons to fear that something really gets out of hand in terms of litigation, and you start bumping up against those deadlines.”

That threat could be exacerbated by a little-noticed aspect of the Supreme Court’s June ruling in a major elections case, Moore v. Harper.

The court rejected the claim, pushed by conservatives, that state legislatures have essentially free rein to make election rules, unconstrained by state courts. But, as the election law scholar Rick Hasen has noted, the justices did give themselves the power to second-guess state courts if they decide state courts went too far in regulating an election.

This authority, Hasen has written, is going to be “hanging out there, a new tool to be used to rein in especially voter-protective rulings of state courts. Every expansion of voting rights in the context of federal litigation will now yield a potential second federal lawsuit with uncertain results.”

Those statutory deadlines that Foley worries about also concern David Becker, the executive director of the Center for Election Innovation and Research.

He warns that election deniers — including grifters looking to exploit Trump voters’ fears of a stolen election for financial gain — will be even more effective this time at sowing disinformation if their candidate loses on election night. That could lead to even more, and more unpredictable, political violence.

“Instead of having it be focused on just one place at one time — the Capitol on January 6th — we could see it focused on the counting process, the certification process, on the meeting of the Electoral College, at various points in time in various places,” said Becker, a leading expert on election administration. “From talking to people around the country, there is a concern about efforts to basically undermine the will of the people.”

That kind of chaos could bog things down enough that the election’s statutory deadlines — the safe harbor deadline, the meeting of the Electoral College six days later, and the Jan. 6 certification by Congress — come into play and force a halt to the process. Indeed, Becker noted, that appears to have been part of the Trump team’s strategy last time around.

“The effort to string this out and delay until the winning candidate has his hand on the Bible on the steps of the Capitol — that’s almost certainly going to happen,” said Becker. “They’re going to do everything they can to slow down the mechanics of elections.”

Nashville, Tenn., Nov. 7, 2020: “Stop the Steal” event.| Alex Kent/States Newsroom

Voter suppression

It may seem quaint in an era when there are fears about outright subversion. But perhaps the simplest way a free and fair election might be compromised is through old-fashioned voter suppression — something that many Democrats would argue already happened not too long ago.

An October report by the Voting Rights Lab, a voter advocacy group that tracks voting laws across the country, found that voters will face “significant new restrictions” in four key swing states: Georgia, New Hampshire, North Carolina, and Wisconsin. (A fifth swing state, Pennsylvania, will have both restrictive and expansive new voting laws in place.)

“Swing state voters often determine the outcome of our presidential elections,” said Liz Avore, a senior policy adviser for the group. “Millions of those voters will see new rules in 2024 — many restricting access to popular options like early and mail voting. How they respond could just be the difference in a tight presidential race.”

In all five of those states, it will be harder to vote by mail than it was in 2020.

North Carolina might have gone furthest in restricting mail voting. A strict photo ID law, passed in 2018 but newly approved by the state Supreme Court, requires that mail-in ballots, which already had to be notarized or signed by two witnesses, must also include a copy of a photo ID.

A different law passed this year by the state requires that mail ballots be received by 7:30 p.m. on Election Day, where previously they only had to be postmarked by Election Day and received by three days after. In 2020, 11,000 ballots arrived at election offices in those three days, according to figures provided by the Brennan Center.

In Georgia, the state with the smallest margin of victory last time, new rules require voters to provide a specific ID number both when they apply for and when they return a mail-in ballot. There are also tighter rules on when and where ballot drop boxes will be available. And residents are now allowed to challenge the eligibility of an unlimited number of voters, potentially overloading election officials with meritless challenges. Last year, 92,000 registrations were reportedly challenged.

Wisconsin, another state that could be pivotal, also made mail voting harder. State Supreme Court rulings have banned ballot drop boxes and barred third parties from returning mail ballots — restrictions that weren’t in place in 2020.

But that might not be the last word. The court now has a liberal majority, and a new lawsuit seeks to reinstate drop boxes, as well as expanding access to mail voting in other ways.

In Pennsylvania, as in North Carolina, mail-in ballots must now be received by Election Day to be counted. In 2020, in an accommodation to COVID-19, they only needed to be postmarked by Election Day.

Still, that restrictive change could be canceled out by an expansive one: This year, the state began automatically registering voters who have contact with the state DMV unless they opt out, making it easier to get on the rolls.

And New Hampshire will have some of the most antiquated and restrictive voting rules in the nation next year. Thanks to the expiration of COVID-19-era accommodations that temporarily expanded access to mail-in and early voting, most voters will have no other option than voting in person on Election Day — something that’s the case in only two other states.

It’s always hard to gauge just how many voters will be affected by new voting laws. Indeed, scholars increasingly appear to agree that changes to voting rules affect outcomes only in the very closest races.

But Biden won Georgia in 2020 by fewer than 12,000 votes, and Wisconsin by just over 20,000. If those or any of the other states with restrictive new laws are equally close next year, it could be hard to rule out the possibility that these measures — which are generally thought to affect more Democratic voters than Republican ones — made the difference.

That likely wouldn’t trigger the kind of national crisis that a conflict over electoral votes at the Capitol would. But it would compromise the election, and further undermine democracy, nonetheless.

Still, too much hand-wringing over the laws could be counter-productive.

Becker suggested that the biggest impact of these restrictive laws could be to deter infrequent voters by conveying the message — in most cases, false — that voting is arduous and there’s an organized effort to stop you from going to the polls.

“Those messages are going to make it less likely for an infrequent voter to show up,” said Becker, noting that Trump allies’ claims that the system had been rigged by widespread illegal voting may have worked to depress Republican turnout in the 2021 Georgia U.S. Senate runoffs.

“The best way to suppress a vote is to get the voter to suppress themselves.”

Election administration troubles

It’s worth remembering that, despite the chaos and violence of the post-election period in 2020-21, the voting itself confounded some predictions by going remarkably smoothly.

Facing the twin challenges of a pandemic and a concerted campaign by the incumbent to sow distrust over fraud, election administrators nationwide provided an accessible, secure process that featured the highest turnout since the 1890s — a genuine triumph of democracy.

Still, three years later, the U.S. elections infrastructure is under strain. A mass exodus of local election officials, caused in part by a barrage of threats and intimidation from denialists, has made headlines and sparked concern.

Pennsylvania, North Carolina, Virginia, and Texas are all said to have had top officials leave. And a recent report by the good-government group Issue One found that 160 chief local election officials in 11 Western states — around 40% of all chief local election officials in those states — have left their jobs since November 2020.

The report singled out the region’s two swing states, Arizona and Nevada — both hotspots for denialism and threats of violence against administrators — as especially hard hit by the departures.

“As a former county recorder myself, I can attest that the pre-2020 world for election administrators is gone,” Arizona Secretary of State Adrian Fontes said at a Nov. 1 U.S. Senate hearing. “We don’t feel safe in our work because of the harassment and threats that are based in lies.”

Fontes, a Democrat, called the issue a “threat to American democracy.”

But, while everyone agrees threats and harassment targeting election officials are a serious concern, fears about the impact on 2024 may be overblown.

Becker, who works closely with election officials across the country, noted that in both states, the key counties that have seen departures have found effective replacements. In Arizona, both Maricopa and Pima counties have elected recorders who have prioritized nonpartisan election management and voter access. And when the respected elections director for Clark County, Nevada stepped down, he was replaced by a deputy who had worked in the office for 25 years.

“Although I have many concerns about the election, one of them is not whether the election officials are going to manage an accessible, secure process,” said Becker. “I think election officials will do what they have always done, which is to rise above this and provide an easy convenient way for all eligible voters to vote, and a transparent method for counting those ballots that stands up to scrutiny.”

Still, the task of administrators could be complicated by the presence at the polls of self-appointed voter fraud watchdogs. Responding to Trump’s lies about illegal voting, conservative activists are mobilizing to scour the voting process for evidence of irregularities.

One nationwide coalition of groups organized by a top Trump election lawyer, the Election Integrity Network, is working to recruit and train activists to serve as poll-watchers and on local elections boards. In Virginia’s 2021 election — the first contest where the group was active — it trained 45,000 poll watchers and officials and covered 85% of polling places, it has said.

Voting rights advocates worry that aggressive poll-watchers could intimidate voters or overwhelm officials with meritless voter challenges, slowing down the voting process.

Democrats are blunter. “The goal is to disenfranchise enough voters that they can win the election,” a staffer for the Virginia Democrats told the New York Times in reference to the group’s activities in the state’s current election.

An insurrectionist sits in the Senate Chamber on Jan. 6, 2021, in Washington, D.C. | Win McNamee/Getty Images

Yet more potential problems

These are far from the only things that could go wrong. One wildcard that’s causing concern is the possibility of a “contingent election”.

The “No Labels” party has launched a well-funded campaign in support of a bipartisan “unity ticket.” If it succeeds in winning one or more states, the upshot could be to deny either major-party candidate 270 electoral votes. Even if No Labels fails to win a state, an Electoral College tie would also leave both candidates one vote short of 270.

If no one reaches 270, the Constitution requires Congress to choose the president. But no law governs how that process would work. The result, two advocates for Protect Democracy wrote recently, based on conversations with constitutional scholars, would be “chaos and crisis.”

Another threat that’s causing alarm among some election security advocates stems from the multi-state effort by Trump allies to access software used in voting machines. In Colorado, Pennsylvania, Georgia, and Michigan, activists worked with election officials or law enforcement to gain access to the software.

Most experts say it isn’t likely that they could change votes at a scale large enough to affect the outcome of a presidential election — in part because every swing state now uses paper ballots as a backup so that results can be verified.

The more realistic worry is that hackers could draw attention to a breach in order to stoke anger and controversy, giving the election loser additional ammunition to claim that the result was rigged. That might not subvert results, but would help undermine the election’s legitimacy in the eyes of some voters.

One leading democracy advocate has a very different fear: that the election will be legitimate, but that its result will nonetheless put our system of government at risk.

“We are not out of the woods, but that danger (of election subversion) has been greatly reduced,” Ian Bassin, the founder and executive director of Protect Democracy, and the recent recipient of a MacArthur “genius” grant, said in an October podcast interview.

“The bigger danger is that an autocrat will simply win the 2024 election.”



authored by Zachary Roth
First published at https%3A%2F%2Fmichiganadvance.com%2F2023%2F11%2F07%2Fone-year-out-how-a-free-and-fair-2024-presidential-election-could-be-under-threat%2F

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