Steven Rosenfeld

A federal court just jeopardized thousands of Minnesota ballots in the last leg of the 2020 race

A federal appeals court on Thursday ordered Minnesota to "segregate" all absentee ballots that are postmarked by Election Day, Nov. 3, but arrive in the mail over the subsequent days. The decision was a stark warning the courts may end up disqualifying these votes in post-election litigation.

"The Secretary [of State]'s instructions to count mail-in ballots received up to seven days after Election Day stand in direct contradiction to Minnesota election law governing presidential elections… [and] are likely to be declared invalid under the Electors Clause of Article II of the United States Constitution," the Eighth Circuit said in a 2-1 split decision that found Minnesota Secretary of State Steve Simon lacked authority to extend the ballot-return deadline.

"The Secretary and his respective agents… are ordered to identify, segregate, and otherwise maintain and preserve all absentee ballots," the order continued, "in a manner that would allow for their respective votes [for president and vice-president]… to be removed from vote totals in the event a final order is entered by a court."

The appeals court ruling is the latest decision by a federal court that has thrown into question a subclass of absentee ballots—those postmarked by Election Day but arriving in the mail days later — that GOP officials have sought to disqualify via an ultraconservative interpretation of election law. Republicans, in Minnesota and in other 2020 swing states, have contended that only a state's legislature has the authority to adopt rules governing how elections with federal candidates are to be run.

On Wednesday, the U.S. Supreme Court issued two decisions where non-legislative actors had extended their state deadline for accepting absentee ballots. In Pennsylvania, the state's supreme court extended the deadline by three days to November 6. In North Carolina, the state's election board extended it to November 12. In these states, the Supreme Court let the ballot-return deadlines stand, saying that it was too close to Election Day to alter it without confusing voters.

But statements by several conservative justices in those rulings said that post-Election Day litigation could likely disqualify the late-arriving ballots for the same reasons cited in the Minnesota ruling: that non-legislative actors (a state supreme court citing a state constitution and a state board of elections) had made decisions affecting the "time, place and manner" of federal elections without authority under the federal Constitution.

"Simply put, the Secretary [of State] has no power to override the Minnesota Legislature," the appellate court said. "In fact, a legislature's power in this area is such that it 'cannot be taken from them or modified' even through 'their state constitutions.'"

Late last week, the U.S. Supreme Court issued a similar ruling for Wisconsin, another swing state, when it decided not to overturn an appeals court ruling that concluded its absentee ballots had to be returned by Election Day because Wisconsin's legislature had not extended the ballot-return deadline.

In reaction to Wednesday's Supreme Court ruling, Pennsylvania told the high court that it would "segregate" the absentee ballots arriving after Tuesday and through its Friday deadline. While Pennsylvania officials have not said much about that decision, election law experts have said the move would shield 2.1 million absentee ballots that already have been returned from possible GOP challenges. In Pennsylvania, 3.1 million voters applied for absentee ballots.

The press office for the North Carolina State Board of Elections did not respond to an inquiry Thursday asking whether it might follow Pennsylvania's lead and also segregate the ballots arriving in the mail between November 3 and November 12.

Voting rights groups, including North Carolina's NAACP state chapter, discussed the Supreme Court ruling on Thursday to assess its legal options for defending properly postmarked ballots arriving after Nov. 3. As of October 29, 852,000 absentee ballots have been returned by North Carolinians. Across the state, 1.45 million voters have applied for the ballots.

In Minnesota, Secretary of State Steve Simon told the Star-Tribune newspaper before the ruling was issued, "If that [ballot return deadline] is reversed, it would be extraordinarily disruptive — not to mention disenfranchising." His office's website did not have a comment on the ruling.

Statewide, more than 1.7 million absentee ballots have been requested in Minnesota, the U.S. Elections Project reported. As of October 29, 1.19 million Minnesotans have voted early—a mix of in-person early voting and absentee ballots. The state combines these figures.

Stepping back, it appears the Republican Party and its allies have found a way that may disqualify potentially large volumes of late-arriving absentee ballots in four swing states: Minnesota, Wisconsin, Pennsylvania and North Carolina. The basis for that prospect is the contention that no authority other than a state legislature can regulate federal elections.

Here's the truth about the recent latest cyberattacks targeting the U.S. election

Two weeks before Election Day, cybersecurity threats and related disinformation originating overseas and targeting the 2020 election briefly were front-page news.

Threatening emails to voters supporting Democrats were purportedly sent by the Proud Boys, a pro-Trump white nationalist group. State voter registration databases in Alaska and Florida were purportedly breached, and videos containing non-public voter information were posted online. As federal agencies blamed Iran and Russia, an anxious electorate faced more worries.

"Sad but true, bad actors continue their attempts to undermine confidence in the election, now w/ a misleading video," tweeted Chris Krebs, Cybersecurity and Infrastructure Security Agency (CISA) director, in one "Rumor Control" post on October 21. "Stay calm and vote on."

The incidents—which were described, deconstructed, and debunked in non-technical terms in a Stanford Internet Observatory report issued two days later—came in the same week that the U.S. passed the 50 million mark for ballots already cast. The attacks may have been headline news, but they did not dent record turnout. Their false claims were swiftly outed and then drowned out by domestic noisemakers.

"Of course when it comes to spreading false information, the Russians have plenty of help from the President and his media allies," wrote longtime journalist Nina Burleigh on Deep State blog, which monitors the world's intelligence agencies, launching its series on foreign interference in the 2020 election.

Nonetheless, top federal officials who are allies of the president said the alleged Proud Boy emails and purloined voter registration data were concrete evidence of Russian and Iranian attempts to influence the 2020 election in its final weeks. But as news reports were filled with murky accusations, the Stanford researchers—who include some of Silicon Valley's foremost cybersecurity experts—concluded that no election data or computer systems had been breached. Instead, the propagandists—and the researchers found no trace of Iranian involvement—fabricated content to fuel the impression that the 2020 nationwide election cannot be trusted.

"This series of events represents an active measures campaign intended to create the perception of a massive vulnerability in the U.S. election system that does not exist, and possibly to drive tension in the United States through the invocation of a well-known hate group," the report's summation began. "Every conclusion that the creators of these emails and video wanted Americans to leave with are false:

  • These intimidating emails were not sent by the Proud Boys
  • Voting continues to be private, safe and secure, and there is no mechanism by which an outside actor can determine the vote of an individual and later threaten them
  • The video does not portray a SQL injection attack against the Alaskan or Floridian voter registration systems
  • There is no widespread conspiracy to change election outcomes via the FWAB [overseas and military absentee ballot] system
  • Such a conspiracy could not succeed"

Another part of the analysis said, "We cannot provide independent attribution to the Islamic Republic of Iran," which contradicted claims made by federal agencies.

Election Vulnerabilities

The emergence of foreign-based threats that triggered high-profile news coverage but apparently had little impact on election infrastructure did not escape notice.

"[I]s this all they've got?" wrote ElectionLawBlog founder Rick Hasen. "Why aren't the Russians doing a better job interfering in the 2020 elections to benefit Trump?"

"The people behind this campaign were effective, however, in drawing attention to themselves and to their capability to create disinformation," Stanford's report said. "The rapid reaction of government and civil society to these incidents has blunted the capability of these actors to spread their false claims. Our hope is, now that the video and emails have been thoroughly debunked, that media coverage of this disinformation is measured and that future attempts to imply hacking of the voting system are not given unearned amplification or credence."

What was notable about the Stanford Internet Observatory report was that its tone was neither alarmist nor dismissive. It was a sober assessment that threats, foreign and domestic, to disrupt the legitimacy of the 2020 election do exist. But, thus far, the foreign-based threats have not overwhelmed the system.

What Was Faked?

The voter data in the alleged attacks—such as partial Social Security numbers of Alaska voters—might not have come from hacking into a state voter database, as an online video claimed, for example. It could have come from stolen credit bureau data marketed on the dark web, the Stanford analysts said. What was of more concern, however, was that someone took the time to fashion that data into a falsified claim that voting infrastructure was easily breached.

"Releasing voter information and claiming it was hacked, as the newly-released video does, is not a new tactic," the analysts said. "Early last month, for example, claims spread by Russian media outlet Kommersant reported that Michigan's voter data was posted on a Russian hacking forum. EIP [Election Integrity Partnership] researchers verified that the data available for download matched Michigan's public records, and state officials confirmed that the voter data is publicly available to anyone through a Freedom of Information Act (FOIA) request. Similar claims circulated recently with voter data from Florida being posted on a Russian hacking forum. Again, EIP verified that the data schema matched what is made public by the state."

(EIP refers to the Election Integrity Partnership, a mix of academic, public and private sector institutions seeking to "detect and mitigate the impact of attempts to prevent or deter people from voting or to delegitimize election results." The Stanford Internet Observatory is part of this consortium.)

Election Administration Worries

These efforts to create and spread false claims about voting and the underlying election system are in the sphere of media and partisan propaganda, which was not the same sphere as where elections are conducted. The world of running elections resembles an assembly line, where voters and ballots are methodically processed.

Since 2016, state and county election officials have taken many steps to monitor cyber attacks in real time and to harden their data and related computer systems, starting with voter registration files, said a former top state election official who spoke on background. In addition to using sensors to detect intrusions and quickly sharing activity reports with all states, access to voter data was limited, he said, even if some of that data was publicly available. Voter data was also backed up daily, he said, just as software was regularly updated with security patches.

Voter data was separated from vote-counting systems, he said. What was of more concern to him than claiming to meddle with registration data was the prospect of foreign agents infiltrating the private vendors who work for counties and states to "host and post" their election night results.

Disrupting the election night reporting is seen as a threat. Many election officials recall how the Democratic Party's 2020 Iowa Caucus results were delayed for a day due to an app and system failure, creating much consternation including the mainstream media's inability to explain the delay and urge the public to wait.

The New York Times recently noted that county election offices could be targets of ransomware, where systems are frozen until bounties were paid. That prospect was raised in an October 26 briefing by ex-Secretary of Homeland Security Michael Chertoff for the bipartisan National Task Force on Election Crises. Microsoft had just obtained a court order to disable a ransomware network, Chertoff said.

There are other potential worries. In many primary states debuting new voting systems before the pandemic struck in March, electronic poll books—which help voters check in at precincts—kept losing their online link to state voter databases. The spotty connectivity affected numerous California counties. Election officials in Georgia and South Carolina reported similar issues during October's early voting. Should that issue recur or a ransomware threat emerge on November 3, the remedy would be distributing paper copies of voter rolls to precincts, experts have said.

Another point of vulnerability is the cellular modems that connect precinct ballot scanners to a central tabulator to report the election night's vote totals. Ion Sancho, the former supervisor of elections (SOE) in Leon County, Florida, recently wrote a letter noting this concern to Florida's SOEs and urging them to make other plans.

"[T]he ideal solution is to remove your central tabulator from the internet completely and to not use your wireless modems," he said, saying there were other ways to report precinct results. He suggested taking photos of the cash register-like poll tape produced at the close of voting and sending that image in via text or by email, or hand-delivering the vote-counting machinery's computer memory card.

Any national election involving 10,000 jurisdictions, hundreds of thousands of poll workers and tens of thousands of pieces of machinery will have problems. Whether those problems accelerate to affect multitudes of voters or alter the vote counts is another matter—and at the heart of assessing threats to the election's legitimacy.

What happens inside the election infrastructure is one thing, while what is said about those procedures in the media or in political propaganda is another.

"We are now in the final stretch of the election, and tens of millions of voters have already cast their votes free from foreign interference," CISA's Krebs said in a "Rumor Control" video. "We remain confident that no foreign cyber actor can change your vote. And we still believe that it would be incredibly difficult for them to change the outcome of an election at the national level."

"But that doesn't mean various actors won't try to introduce chaos in our elections and make sensational claims that overstate their capabilities," he continued. "In fact, the days and weeks just before and after Election Day are the perfect time for our adversaries to launch efforts intended to undermine your confidence in the integrity of the electoral process."

"The divisions within American society, and many others, are now so deeply ingrained that there's no need for foreign influence in order to amplify and inflame," noted Claire Wardle, a misinformation expert, on the national security blog Lawfare. "From the cellphone-captured footage of Americans screaming in supermarkets about masks, to family members having to disown loved ones because of outlandish beliefs, to a neutered Centers for Disease Control and Prevention whose downfall was fueled by and consequently fueled misinformation, to university lecturers terrified of being filmed by students looking for evidence of liberal bias, to a weakened news media falling almost on a daily basis in the trust ratings, the evidence of our divided society is all around us."

In other words, voters should expect competing and even false claims about the voting experience and the election results on November 3 and in the days after. While some of those claims will be amplified by foreign adversaries, most will originate domestically, where voters will have to wait for results, assess the evidence of accurate vote counts and live with the political consequences.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

This article was produced by Voting Booth, a project of the Independent Media Institute.

Here's what the Supreme Court's threat to mail-in ballots really means

Two Supreme Court decisions issued Wednesday took no action to change 2020's election rules in Pennsylvania and North Carolina, but statements from conservative justices warned that the high court would likely disqualify any absentee ballot received by election officials after Election Day—because those states' legislatures had not extended the ballot return deadline.

"The important constitutional issue raised by this matter… could lead to serious post-election problems," began the statement by Justice Samuel Alito concerning Pennsylvania, where the state supreme court extended the ballot deadline by three days to Friday, November 6.

"The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election," Alito said, in a statement agreed to by Justices Clarence Thomas and Neil Gorsuch.

"In some respects, this case may be even more egregious," wrote Gorsuch in his dissent in the North Carolina ruling, "given that a state court and the [statewide election] Board worked together to override a carefully tailored legislative response to COVID. Indeed, the president pro tempore of the North Carolina Senate and the speaker of its House of Representatives have intervened on behalf of the General Assembly to oppose revisions to its work."

At first glance, the contention that state constitutions, state supreme courts and state boards of elections have no power to regulate elections without explicit authorization from federal authorities or state legislatures, could have radical implications. It would suggest states could not adopt policies that go beyond the federal standard. But, for now, the issue in play concerns the counting or the disqualifying of absentee ballots that will be received by officials after Election Day in two 2020 battleground states.

In recent days, the U.S. Supreme Court has issued rulings that rolled back accommodations made by lower federal courts after Republican-majority legislatures did not extend absentee ballot deadlines and loosen other voting rules in response to the pandemic. The newest Justice, Amy Coney Barrett, did not participate in either decision issued Wednesday.

The court's conservatives said that they would have gone further in the North Carolina and Pennsylvania rulings but for the proximity to Election Day. Any last-minute changes in voting rules are confusing for voters, officials and tend to create problems undermining public confidence in the process, they noted.

Gorsuch recounted this chronology and said that he and fellow conservatives were inclined to draw a line on counting absentee ballots that were received by officials after Election Day, even though that issue could not be litigated until after November 3.

"Despite the [North Carolina] General Assembly's considered judgment about the appropriate response to COVID, other state actors—including the State Board of Elections—recently chose to issue their own additional and supplemental set of amendments to state election laws," he wrote. "Relevant here, they purported to extend the absentee ballot receipt deadline by six days, up to November 12. That last part should sound familiar. Just days ago, this Court rejected a similar effort [in Wisconsin] to rewrite a state legislature's election deadlines. Wisconsin (like North Carolina) has a ballot receipt deadline enshrined in statute. All the same, a federal district court decided to order Wisconsin to extend its deadline by six days. The Seventh Circuit stayed that ruling, and we agreed with its disposition. For many of the same reasons I believe that decision was correct, I believe we should stay the Board's action here."

The justices' statements, which told Republicans that they have a post-Election Day basis to challenge and disqualify potentially thousands of late-arriving absentee ballots in the two swing states, reshuffles some Election Day scenarios.

Kathy Boockvar, Pennsylvania Secretary of the Commonwealth, told the Supreme Court on Wednesday that she has directed county election offices, which run her state's elections, to "securely segregate all mail-in and civilian absentee ballots received between 8:00 p.m. on Tuesday, November 3, 2020,and 5:00 p.m. on Friday, November 6, 2020, from all other voted ballots."

On his ElectionLawBlog, scholar-pundit Rick Hasen asked, "Why would Democratic state officials do this?" He opined that they did not want Republicans to try to disqualify all of the absentee ballots cast—because once the ballots are taken from their return envelopes and counted, it would be impossible to retrieve them should the high court void them.

North Carolina's State Board of Elections had no statement about the Supreme Court ruling on its website on Wednesday, but instead emphasized how statewide voter turnout was poised to cross the "50 percent" threshold with one week to go before Election Day.

"Through Tuesday, more than 2.8 million voters had cast ballots in person this year, nearing the 2,955,600 votes during the entire 2016 early voting period," it said. "Combined with more than 819,000 by-mail ballots, more than 3.6 million North Carolinians have already voted, about 49.6 percent of all registered voters."

North Carolina-based voting rights attorneys contacted on Wednesday night did not know if the state board would follow Pennsylvania and segregate absentee ballots that were received after Election Day. The board had said that ballots received through November 12 could be counted. The state Senate president, Phil Berger, issued a statement saying late-arriving ballots should not counted. "If public confidence in elections is important to our system of government, then hopefully the answer to that question is 'no.'"

A 2020 Game Changer or Not?

The conservative justices' statements open up a potential post-Election Day avenue for Republicans to disqualify some volume of absentee ballots. This scenario raises big immediate questions, such as how many votes might be imperiled, and could that volume alter election outcomes?

Phil Keisling, a Democrat, former Oregon secretary of state who oversaw its introduction of all-mail voting and who is now the board chair of the National Vote at Home Institute, said that the impacts might be less than many Democrats may fear.

To start, state legislatures in every other battleground state have passed laws that set post-Election Day "received by" deadlines for absentee ballots returned via the mail, he said, which was what the high court's conservatives wanted to see. In Iowa, that cutoff is November 9. In Nevada, it's November 10. In Ohio, it's November 13.

When it comes to future Supreme Court litigation and rulings shaving off possibly thousands of votes after Election Day, Keisling thought that fear might be overstated because so many voters have already cast ballots or were likely to vote by Election Day. Just as the North Carolina State Board of Elections said that half of the state's registered voters had voted by Wednesday, in Pennsylvania record-breaking percentages of voters have requested and already returned absentee ballots.

The U.S. Elections Project, whose early voting, ballot request and ballot return data is the basis for many national news reports, said that nearly 2 million absentee ballots had been returned across Pennsylvania as of October 28, out of 3.1 million requested ballots. Kiesling said that having an Election Day return deadline could undermine the false Republican narrative that late-arriving absentee ballots would be fabricated by Democrats to elect Joe Biden.

Historically, Republicans have voted in higher numbers by absentee ballots, he said. But that precedent has been turned upside down in 2020, as Democrats and independents have been voting absentee at more than triple the rate of Republicans. Keisling was hopeful the volume of absentee ballots arriving after Election Day in Pennsylvania and North Carolina would not be very large, especially if voters were urged to return their ballots in person. (He noted that Pennsylvania was widely deploying drop boxes. In North Carolina, absentee ballots could be dropped off at any early voting location—ending Saturday—but not at Election Day polls.)

While Keisling may prove correct that the latest rulings might not implicate enough votes to determine the outcomes of the highest-profile races in these states, the conservative justices' comments left no doubt that the nation was on the verge of a new chapter in election law—one where only legislatures have the power to run elections, not state constitutions, governors via executive orders, secretaries of state issuing directives, state election boards settling lawsuits or state supreme courts upholding their state constitutions.

"As they [the federal appeals court] observed, efforts like these [in North Carolina] not only offend the [U.S. Constitution's] Elections Clause's textual commitment of responsibility for election lawmaking to state and federal legislators, they do damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures," wrote Gorsuch in his dissent. "Such last-minute changes by largely unaccountable bodies, too, invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results."

If these issues return to the court after Election Day, Justice Barrett will likely participate in the deliberations and rulings.

There's an ominous undercurrent in the Supreme Court's recent election cases

Head: Will Supreme Court Election Rulings be 2020's October Surprise?

Late Monday, as its newest justice was about to be sworn in, the Supreme Court issued the first of what may be more rulings in coming days that underscore the conservative majority's marked hostility to voting rights.

Seen narrowly, the court's conservatives ruled that Wisconsin could not extend a deadline to accept absentee ballots that had been postmarked by Election Day but arrived six days later and banned anyone from being a poll worker who was not a resident of the same county. (A lower court had granted these measures, but they were put on hold pending appeals.)

In concrete terms, the Wisconsin ruling could cut into the lead held by Democratic candidates among absentee voters—as a Supreme Court-extended return deadline in April's presidential primary allowed 80,000 additional ballots to be counted (7 percent of all absentee ballots). The decision also meant that some poll workers will not be able to work as anticipated. It may be hard to replace these workers, given the state's resurgent coronavirus outbreak.

"The Democratic Party of Wisconsin will double down on making sure that every Wisconsin voter knows how to exercise their right to vote in the final eight days of this election," Wisconsin Democratic Party Chairman Ben Wikler said in a statement.

The ruling is expected to be followed by Supreme Court decisions on GOP appeals tp extended ballot return deadlines in North Carolina (now November 12). With a new justice, it may reconsider aspects of its recent 4-4- decision in Pennsylvania, where a three-day ballot extension remains in place, but larger issues loom. It's an open question whether the court could empower state legislatures to ignore the election's popular vote and appoint its own presidential Electoral College slate.

In other words, hostility to voting rights by the Supreme Court's expanded conservative bloc could become the quadrennial "October surprise," upending the election, much like former FBI Director James Comey's announcement in October 2016 that the FBI was reopening an investigation into Hillary Clinton's government emails roiled the close of that race.

The voting cases before the Court have yielded decisions but not many detailed explanations. But the Wisconsin ruling was accompanied by concurring and dissenting opinions—split along liberal and conservative lines. Scholars on law blogs said these views were formulated during deliberations over many voting rights and election procedure cases this fall.

From a legal standpoint, the high court conservatives said that lower federal courts had no justification to assist Wisconsin voters because that responsibility squarely rests with its state legislature. The fact that the Republican-majority legislatures opted to not act on voters' behalf in response to COVID was irrelevant, the court's conservatives concluded.

"One may disagree with a State's policy choice to require that absentee ballots be received by Election Day. Indeed, some States require only that absentee ballots be mailed by Election day," wrote Justice Brett Kavanaugh in a concurrence. "But the States requiring that absentee ballots be received by election day do so for weighty reasons that warrant judicial respect. Federal courts have no business disregarding those state interests simply because the federal courts believe that later deadlines would be better."

Wisconsin's legislature is not unique among battleground states. The purple states where legislatures did not take steps to make voting easier in response to COVID-19 were the same states where Republicans have held legislative majorities for the past decade, a consequence of partisan gerrymanders. These states, where much of 2020's voting rights suits have unfolded, include Wisconsin, Michigan, Pennsylvania, Ohio, North Carolina, Texas and Florida.

The view of the Court's liberals, as expressed in a dissent by Justice Elena Kagan, said federal courts had a responsibility to assist voters exercise their rights.

"The Court's decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic conditions," she wrote. "Because the Court refuses to reinstate the district court's in-junction [extending the ballot return deadline], Wisconsin will throw out thousands of timely re-quested and timely cast mail ballots. And today's decision does not stand alone. In other recent cases as well, the Court has halted injunctions necessary for people [in Alabama] to cast ballots safely."

But Kavanaugh said that Wisconsin voters had other options, including Election Day registration and voting, and that state election officials have been urging the public to make plans to vote for months. Thus, Kavanaugh said that extending a ballot-return deadline that had been suspended by an appeals court was disruptive at the last minute. Kagan, however, countered that giving voters and local election officials more time helped the process and legitimized the election outcome.

"Last-minute changes to election processes may baffle and discourage voters; and when that is likely, a court has strong reason to stay its hand," Kagan said. "But not every such change poses that danger. And a court must also take account of other matters—among them, the presence of extraordinary circumstances (like a pandemic), the clarity of a constitutional injury, and the extent of voter disenfranchisement threatened."

Stepping back from the particulars of the Wisconsin case, the worrisome undercurrent is that the Supreme Court is elevating the authority of legislatures to set the rules for elections. That power extends to authority under the federal Constitution to disregard the popular vote and appoint a slate of presidential electors favoring the legislative majority's party.

"Barton Gellman recently explored this risk in the Atlantic, citing a law review article I wrote last year," wrote Edward B. Foley, a constitutional scholar who leads Ohio State University's election law program. "But where my analysis of the issue was hypothetical, Gellman quotes key GOP figures in Pennsylvania acknowledging on the record that this option is under consideration. Last week, the Pennsylvania legislature began forming an investigatory committee, seen as the first step toward implementing such action."

Whether the Supreme Court's enlarged conservative bloc is heading down a path that will merge with the scenario presented by Foley and affirmed by Gellman is an open question. But the reasoning behind the court's Wisconsin ruling appears to be a step in that direction.

This article was produced by Voting Booth, a project of the Independent Media Institute.

How Democrats are fighting to undo a decade's worth of Republican gerrymandering

The presidential and U.S. Senate races have dominated the 2020 election season. But down the ballot, races for state legislature and governor will determine the political complexion in many purple states for the next decade—much longer than the next president will serve.

The reason these races have such a long-lasting impact is that the winners of state legislative elections this fall will redraw the boundaries for their legislative districts and for U.S. House seats. A decade ago, the Republican Party, who saw their presidential candidate lose in 2008 by nearly 10 million votes, targeted 107 races in 16 states with the goal of redrawing maps affecting 190 U.S. House seats. The common term for aggressively segregating voters into districts is gerrymandering.

The GOP effort, called RedMap, was unchecked at that time by Democrats, even as it focused on states won by President Obama. RedMap succeeded and led to GOP supermajorities in state capitols and U.S. House delegations. These majorities have been behind the most extreme GOP actions of the past decade at the state level and in Congress; whether resisting or rolling back safety nets, civil rights, reproductive choice, gun controls, environmental regulation and labor laws.

In 2016, longtime political reporter David Daley published a book explaining how Republicans instituted some of the most extreme gerrymanders in American history, where the GOP drew districts to facilitate winning majorities and sought to "crack or pack" blue epicenters. Since the publication of Rat F**ked: The True Story Behind The Secret Plan to Steal America's Democracy, the Democratic Party has vowed to not repeat this history.

Voting Booth's Steven Rosenfeld interviewed David Daley about the races that will determine this decade's political complexion in purple states such as Wisconsin, Michigan, Minnesota, Pennsylvania, Arizona, Texas, Kansas, North Carolina, Georgia and Florida.

Key down-ballot contests are as hard-fought as the races at the top of the ticket, Daley said. Even if President Trump and Senate Republicans are resoundingly defeated, there may still be ferocious post-Election Day challenges and legal fights if mapmaking power is in play.

Steven Rosenfeld: The volume of votes already cast in the 2020 election is remarkable. More than 52 million as of October 23. Most people are focused on the White House and Congress. Your focus is state legislative chambers and who will draw or veto the political maps that will last for a decade starting in 2021. What impact will record voter turnout have?

David Daley: I don't think anybody knows what impact the turnout will have. I think it's dangerous to assume partisan enthusiasm one way or another from an early turnout number. It seems that both sides' turnout is fairly well matched at this point. Democrats have been aggressively seeking mail-in ballot voting in a lot of states, and they seem to have an edge there. But as far as early in-person voting goes, I think it's hard to say.

There's a lot of ways of looking at it. In some states there is a sense that some of the really contested statehouse races that are so important for 2021's redistricting are perhaps trickling up, and that they are perhaps funneling more voters in, and more enthusiasm. In the past, the old political science model used to suggest that people trickled down [the ballot, first voting for president]. There are a lot of states where all these local races have been so important that they could help Democrats up and down the ballot.

SR: Can you give me some examples?

DD: I think North Carolina. I think Texas, certainly. Wisconsin is one of those states where Democrats have been really fired up in [state] assembly and senate races simply to try to hold onto Gov. [Tony] Evers' veto power. Democrats have really organized to try to hold onto state legislative power there—to simply have veto power over bad maps that could entrench Republican control for another decade.

SR: When I look at the National Conference of State Legislatures' chart on the partisan composition of each chamber and who holds the governor's seat, and look at the targeted states put out by Democrats and Republicans, there aren't that many states in play. I think the closest ones—with the fewest seats needed to flip a chamber—would be Arizona and New Hampshire. That's two or three seats. Then the number goes up to four or more seats with Florida, Michigan, North Carolina, Pennsylvania.

DD: It's tricky. Let me walk you through the way I see it…

Arizona is certainly flippable by Democrats this year. That would have a big impact with regard to policy [reforms and new laws] in that state. But it has an independent redistricting commission. A flip there is not going to have any change on its [political] maps over the course of the next decade.

Michigan as well. It passed an independent redistricting commission in 2018. A flip there would be useful in regards to policy. You already have a Democratic governor in place who could veto the most egregious maps. But there's a commission that will be in charge.

North Carolina, the governor does not have veto power there. So Democrats either take the House or the Senate [this November], or they have no say over the [redistricting] process over the next decade. And there has been an all-out attempt to win one or both chambers. I think it's 50-50 probably that they could get one. It depends how things break. It's a brand-new map in North Carolina, after the state Supreme Court tossed the old ones. No one has ever run on this map before. It's believed to have a slight Republican lean, but much less of a Republican lean than the one that they were running on in previous years.

Florida, on the other hand. That map has withstood all legal challenges over the course of this decade. I think Florida is probably a very difficult flip. I don't see that one being in the cards.

Georgia is a very difficult flip. I don't see that being in the cards.

Texas, Democrats need nine seats [to flip the House]. They are very aggressively going after them. There are the 18 target districts that went for Beto [O'Rourke in his U.S. Senate race against Sen. Ted Cruz] but have a Republican statehouse member. Democrats have a robust target list in Texas, but still need everything to go right. But they are closer to a flip than they have been at any point in time.

In other states, Democrats are playing defense. Like Wisconsin, [where] they are trying to uphold the veto by a Democratic governor. If Republicans are able to gain a supermajority, then they [the GOP] could override that veto, and they would have pretty much complete control over mapmaking.

Pennsylvania will not be as bad as it was in 2021 because there's a Democratic governor who can get in the way [of a Republican-majority legislature] and make certain that the Democratic interests are considered. Both of the chambers there are still very tough lifts for Democrats to alter.

Democrats are on the offense in Minnesota, looking for a trifecta [control of both legislative chambers and the governor's seat].

And Democrats in Kansas are trying to hold onto the governor's veto because you have a Democratic governor who could conceivably veto the Republican map as long as Republicans don't win a supermajority there.

SR: This landscape strikes me as not being as one-sided as what you wrote about in your book, which focused on 2010's races and the Republicans' extreme gerrymanders that followed in 2011.

DD: I think you are right. The political maps from 2011 have proven astonishingly enduring. These are some of the most effective gerrymanders of all time. Usually, the gerrymander melts away after two or three election cycles because the politics change, people die, the [state's] demographics evolve, but these have lasted for a decade. But Democrats have very effectively found ways to win seats at the table, where possible. They have won veto power by winning governorships in Wisconsin, Michigan and Pennsylvania. They have clawed back in Texas where there are in position with a good year [outcome in 2020] to have a seat at the table.

They [Democrats] have pursued litigation, where possible, and they have won fairer maps in Virginia that resulted in a flip in 2019. They got a fairer map in North Carolina, so they've got a chance at a better map [for the next decade] there. The same with Pennsylvania. The demographics, meanwhile, have changed in Arizona, putting a chamber perhaps in play there. I think Democrats have done a pretty good job of thinking strategically about the levers that were available to them in each state and trying to maximize it. In some states, it's the governor. In some states, it's litigation. In some states, it's trying to win back a chamber. They have systematically thought it through. It's an uphill run, though, because you're running against those maps, so as you're doing it, you have a hand tied behind your back.

SR: One of the most striking aspects of your book was how aggressive the Republicans were with running political ads and attacks at the local level—to win these legislative majorities. Local men and women were viciously smeared. Are 2020's targeted races as nasty?

DD: Oh yeah. Both sides are fully aware of the stakes in these races. You are seeing hundreds of thousands of dollars, millions of dollars in some cases, being funneled into state house and state senate races that once upon a time might have been sleepy. If you are in a competitive state house or state senate race in one of those key states, it is probably a seven-figure race on both sides because that's what's at stake for the next decade. There's mapmaking power, and both parties realize it. It will be deeply hard-fought.

Take North Carolina. Everybody knows in all of these states it's only a handful of swing districts. In some ways, it's like a presidential campaign. Everybody knows there's only a handful of states that matter. You invest all of your resources aggressively there. In North Carolina and a lot of states like this, a lot of the down-ballot races are sleepy, and then there are some that are these seven-figure slugfests.

SR: Looking past Election Day, the other big factor on this decade's forthcoming political maps will be not just the 2020 winners redrawing district lines, but the census count—the people and voters who will be sliced and diced to create political districts. What do you think the impact will be of a truncated census count?

DD: I don't think anybody knows fully. We don't know what the undercount is going to be or where it will be. There's a huge impact of federal funding dollars, and which communities get the resources they will need and which communities don't [get resources]. The next impact is on reapportionment, the number of U.S. House representatives that each state receives. There are a lot of questions on whether an undercount will shift political power in some ways. This power has been moving. Midwestern and New England states are losing seats. Southern and southwestern states are gaining seats. It's really hard to predict which states will gain or lose members [of Congress] based on reapportionment and the census. That, in turn, affects the Electoral College [where votes are allocated based on the congressional delegation size].

If there's an undercount of Latino voters in Texas, could Texas lose seats instead of gaining seats? If there's an undercount in Florida of minority groups, could that offset an undercount in California? It's hard to say until you see exactly where the numbers are. But then you have the additional question of citizenship data. The Trump administration has made it really clear that they want the citizenship data to be provided to state legislatures for redistricting purposes. There's been a longtime standard that state legislatures have followed the national standard of drawing lines based on total population, not the citizen voting age population. If you begin to see states using citizenship data to redistrict, based on citizen voting age population, you are going to see state legislatures where the political power shifts to older, rural, whiter and more conservative areas.

SR: I always thought that strategy was the last play or the last stand in the Republican Party's decline—the destiny by demography scenario where, as white America shrinks and non-white America's population grows, the last big structural play they have is only counting the citizen voting age population when making political districts versus the total population of an area.

DD: I think that's right.

SR: So here we are, two weeks out. And it would be premature to draw any conclusion because these national and state voter turnout figures are too generalized, compared to the local races. But the stakes are enormous—the partisan complexions of the country's purple states.

DD: I think what's clear is the next decade is on the line in all of these states. What you just said is exactly right. Democrats have had this blind faith in the idea that demography is destiny for some time. What Republicans have shown is you can govern from the minority quite effectively and quite reliably through gerrymandering, and rule rigging, and voter suppression.

[South Carolina Sen.] Lindsey Graham once said they weren't making old white men fast enough for the Republican Party to not have to evolve at some point. Yet, through all of these other techniques, they've managed to avoid evolving. And indeed, if they have evolved, it's been further toward the right and further toward that base by drawing themselves districts and entrenching their power in places that look less and less like the rest of the country. It seems like it can't be a long-term strategy, but it sure keeps lasting, and [it] sure looks difficult to find a way to defeat it.

But if that defeat is to come, down-ballot races in 2020 are going to play an outsized role.

SR: We're only talking about 10 or 12 states that might be in play.

DD: That's all we talk about in a presidential election too. There are very few states that don't have both houses of its state legislature in the hands of the same party—as far as houses and senates. Nebraska is an oddball in that [it has one chamber], but every place else is all blue or all red, except for Minnesota. So that eliminates the number of possible pickups, right?

In 2010, when the Republicans were looking to run RedMap, very few seats separated Democrats from Republicans in [state legislatures in] all of these states. That's why they were able to do it. Democrats held Pennsylvania, but their lead in the Pennsylvania statehouse was 102 to 101. It was super-close in Michigan. Democrats had Ohio. They had North Carolina, and Republicans took them all in 2010's election. And then redistricted them in such a way that Democrats haven't come back all decade in most of these states.

Wisconsin is not a state that the Democrats are trying to flip; they are just trying to hold onto veto power with these maps a decade later. In contrast, in Texas and Arizona, a demographic change has come around and put those states in play. Litigation in other states has put [those] states in play. And then polarization elsewhere has ensured that other states will not be in play.

SR: Do you think there will be post-Election Day litigation over these down-ballot races if they are close, even if the results of the presidential election are not in dispute?

DD: It depends on how close they are… Both sides know the stakes. If control of Texas's statehouse is tied or within one seat… There will be close races. Remember Virginia back in 2017, when the last race [deciding the House majority] was tied? They pulled a piece of paper out of a film canister or something to settle it. [Republicans won.] Crazy things happen…

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

This article was produced by Voting Booth, a project of the Independent Media Institute.

Here's what Bill Barr's DOJ can — and can't — do to disrupt the 2020 race

Attorney General William Barr's "slavish obedience" to President Trump, including attacking the validity of millions of absentee ballots now being cast in the 2020 general election, prompted a federal prosecutor, Phillip Halpern, to publicly resign on October 14. He is the third to publicly criticize Barr.

"This career bureaucrat [Barr] seems determined to turn our democracy into an autocracy," wrote Halpern in a San Diego Union-Tribune column. "There is no other honest explanation for Barr's parroting of the president's wild and unsupported conspiracy theories regarding mail-in ballots (which have been contradicted by the president's handpicked FBI director)."

Halpern's resignation as an assistant U.S. attorney after 36 years at the Department of Justice (DOJ) raises the question of what a politicized DOJ could do to assist Trump's re-election.

Barr's "parroting" the false claim that mailed-out—or absentee—ballots are a pathway for large-scale voter fraud was akin to becoming one of the "super-spreaders of disinformation," as Emily Bazelon discussed in the October 18 New York Times Sunday Magazine cover story. But could the Justice Department intervene in the process where returned absentee ballots are accepted or rejected by local and state election officials, or go further and disrupt the counting of votes? In short, it cannot.

"They really don't have any authority," said Justin Levitt, a former deputy assistant attorney general who led the DOJ's voting rights enforcement in the Obama administration, speaking of administering elections. "The actual disruption, if it is going to come, will come from campaigns or private parties, but not from the DOJ."

"I know of no federal law that allows the federal government to intervene in a state-based process, under state law, of counting and certifying election results," said David Becker, who was a senior trial attorney in the DOJ's Voting Section for seven years, and now runs the nonprofit, nonpartisan Center for Election Innovation and Research.

"There is a requirement under federal law that all [election] materials, including ballots, be maintained for 22 months," Becker said, referring to a 1960s civil rights law that was intended to help prosecutors build voting rights cases. "That is largely for evidence gathering and after-the-fact review, if there might be some issue. That's actually useful."

No Authority to Interfere

The Justice Department has no legal authority to intervene in the process of accepting or rejecting any returned absentee ballot, the former DOJ attorneys explained. Nor does it have the authority to interrupt counting votes and certifying results. But what the attorney general and the department can do (and are doing) is issue statements containing misinformation or announce investigations in the campaign's final days to cast doubts on the validity of the process in key states.

"That's a media-based, press-based disruption, but not one that disrupts the count," Levitt said. "What I have been saying of late is reminding people that a lawsuit without provable facts of a statutory constitutional violation is just a tweet with a filing fee."

For months, Trump has been baselessly attacking absentee ballots as a pathway for voter fraud, especially as many polls revealed that millions of Americans, including more Democrats than Republicans, were planning to vote by mail in response to the pandemic. Since mid-summer, Trump has said that local and federal law enforcement would be watching polls and election officials. In September, Barr amplified some of the false claims about absentee ballot fraud.

Nonetheless, Americans have been casting unprecedented numbers of absentee ballots from coast to coast, according to the U.S. Elections Project. As of October 19, more than 29 million people had already voted early or with mailed-out ballots, and more than 82 million people requested absentee ballots. In 2018's general election, 31 million Americans voted absentee.

The ongoing response by the Trump campaign, assisted by the Republican National Committee and some GOP governors, has been to keep filing lawsuits and appeals to tighten the deadlines and rules surrounding absentee ballots. As Levitt noted, these were lawsuits filed by campaigns and political parties, not by the Justice Department, because, as he explained, the DOJ's legal oversight of elections was limited and restricted to three spheres.

"They've got three things they do. One is they can file civil litigation," he said, referring to civil rights laws that arose in the mid-20th century and were mostly concerned with protecting the rights of minorities and ensuring that their votes were counted.

"It's the former statutes that I used to enforce… It's a one-way ratchet," Levitt said. "If you think of the 1950s and 1960s, it makes sense. What Congress was worried about was local election authorities, in fact, not counting the votes of people based on their race or their perceived party. So, the federal government has power to make sure that people aren't improperly excluded."

The second sphere is enforcing election-related criminal codes, such as prosecuting ballot box stuffing (which is very rare), or election-related threats or violence. Those investigations would not be allowed to interfere with the processing of ballots and counting votes after Election Day, Levitt said, because the evidence gathering could continue after the results were certified.

"When DOJ enforces the criminal law, that has no meaning for the actual count of ballots," he said. "When they want to prosecute somebody for voter fraud, that's about individual accountability. But the state and local governments still decide whether the ballots count. So even if DOJ says, 'Yeah, these are fraudulent [ballots],' that has no legal impact whatsoever on whether a state wants to count them or not."

Under federal law, the DOJ has several years to investigate and prosecute, Levitt said, which means that they have no basis to immediately seize ballots or election records. Moreover, there is nothing unusual about federal agents observing elections, which has gone on for decades. Local officials also have protocols to let agents observe and make requests for records to be turned over as evidence, he said. But they cannot step in and reject or seize ballots.

"It's not like having somebody in the room breaks a spell and the ballots are invalid," Levitt said. "What local election officials will do is say, 'Okay, you want to inspect them, great. Here's a pile sitting over here. Come in and look, or I'll go through them. But they stay in that pile.' 'You want to see who this one's [return envelope] is opened for, let's go through our process, and we'll figure out whether a person is eligible or not. And we'll make a decision whether to count it or not, and then you can see… [whose votes are] on the inside of this ballot.' But DOJ sitting in the room is not going to affect if that ballot still has all of the indicators of eligibility."

Where the Justice Department has authority to influence elections, however, is in the press—the third sphere cited by Levitt. But such information warfare is not the same as prosecuting a legal case in a courtroom.

"Will the Trump administration or President Trump be screaming about fraud in the days after the election? The answer obviously yes. Of course, yes," Levitt said, referring to the potential for disinformation. "He was screaming about nonexistent fraud in the 2016 election, which he won. Three-to-five million noncitizen ballots, which is patent nonsense, and he's been out screaming about fraud ever since, without any evidence to support it."

"If you're asking what's the predicate for Trump to make up facts and claim that the election has been rigged, he's never needed one," he continued. "And unfortunately, we've seen the attorney general behave far more like Donald Trump's personal lawyer in this administration than any other I can recall. And unfortunately, we've seen DOJ already [do likewise], with a couple of press releases that should never have gone out."

Information Warfare

In late September, Barr and Trump tried to elevate a minor procedural mistake surrounding nine absentee ballots in central Pennsylvania—a state where 6 million people voted in 2016—into a scandal implying that the 2020 presidential election would not have valid results. This incident, where nine ballots were mistakenly thrown out, followed Barr saying in early September that federal prosecutors had indicted a Texas man for fabricating 1,700 absentee ballots in 2017. There was no Texas indictment, and Barr garbled that case's facts, local officials said.

"I think the Luzerne County, Pennsylvania, case is a perfect example," said Becker, who left the DOJ after then-President George W. Bush's attorney general fired career prosecutors for failing to obtain voter fraud convictions—because alleged wide vote thefts had not occurred. In both instances, the department stepped away from its decades-old tradition of not interfering in elections.

"It is baffling to imagine that a relatively minor mistake that seems to have affected nine ballots, at the most, in a county like Luzerne County, Pennsylvania, would be somehow taken by the elected district attorney of that [county] and reported, not to the secretary of state, or the [state] attorney general, it's reported to the FBI and the DOJ took it up," Becker said. "Within three days, a press release was issued indicating, initially, that nine ballots were processed incorrectly. And also outing those voters as having voted for a particular candidate."

The department's actions were staged political theater, but not a real investigation, he said.

"First of all, three days is not sufficient for an investigation of that sort," Becker said. "Two, I really don't have any understanding about why a press release was issued about an incident where there is no crime and no criminal. By all accounts this was a mistake. It was a mistake that was fixable, because we knew who the voters were. They could have been contacted, and they could have been given another opportunity to vote, and those previous ballots spoiled."

"It was inexcusable [for the department] to release information about who those individuals had voted for," he continued. "And then, to make matters worse… this relatively minor mistake… was reported on the same day to the attorney general, who then communicated it to the president and used it in a campaign appearance that same evening."

Becker, echoing Halpern's resignation letter, said that the DOJ's reputation was, in part, based on keeping out of elections. But the department under Trump was heading in the opposite direction, at least with respect to positioning itself to issue more statements to help Trump's campaign.

"This is not the way the Department of Justice is supposed to work," Becker said. "I have further concerns about recent revelations that the Department of Justice has rescinded guidelines about interfering with the election, about putting out press releases and other things about the election, in close proximity to the election. That was an absolute tenet of ours when we worked there. We were not to become an actor in an election process. We were to investigate. We were, in some cases, to litigate and report out, but not in the context of possibly interfering in an election."

In his current role at the Center for Election Innovation and Research, Becker has been in contact with state officials—Democrats and Republicans—who are seeking to run a legitimate election this fall. Becker said that he has heard from top Republican election officials that Barr was not interested in the facts about absentee ballots.

"The attorney general is just wrong about the potential for fraud," Becker said. "He clearly doesn't understand how mail ballots work. Republican secretaries of state have offered to brief him on this and help him understand, and he has not returned their calls. He has been making claims about fraud that… have been rejected by federal courts. In some cases by judges appointed by President Trump. That is a concern."

However, when it comes to the actual processing of returned absentee ballots or counting votes, the former DOJ attorneys emphasized that neither Trump, Barr nor the Department of Justice have the legal authority to step in and disrupt the state-run election process. But that doesn't mean that Trump or Barr will cease reciting disinformation about the voting process—or that the DOJ will stop issuing press statements filled with innuendo.

"This has been this administration's modus operandi for the past three and a half years," Levitt said. "I think there will be plenty of made-for-media conflict that does not necessarily translate to any disruption of the count. But it is designed to freak people out."

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

This article was produced by Voting Booth, a project of the Independent Media Institute.

Steve Bannon pushes for Trump to claim an early election victory — but there's a huge hole in the plan

One of President Trump's most loyal propagandists is predicting that Trump will claim victory on election night as soon as he is ahead among Election Day voters. But that scenario is based on a misconception of how all ballots are counted and the early returns are compiled, according to election and legal experts.

"At 10 o'clock or 11 o'clock… on November 3, Donald J. Trump is going to walk into the Oval Office, and he may hit a tweet before he goes in there… and he's going to sit there, having won Ohio, and being up in Pennsylvania and Florida, and he's going to say, 'Hey, game's over,'" said Stephen K. Bannon, Trump's 2016 campaign CEO and former White House adviser, during a defiant speech on October 10 forum hosted by the Young Republican Federation of Virginia.

"The elites are traumatized. They do not want to go stand in line and vote. That, ladies and gentlemen, is a game-changer," Bannon said. "It [the decisive factor] is what electorate shows up to vote on a vote that can be certified. That's a vote that counts. And right now, what they [Trump critics] don't want to talk about, is Donald J. Trump leads on people who are actually going to show up and vote on November 3, by 21 percent."

Bannon's prediction that Trump would defy norms by asserting that he won before indisputable victory margins were reported was not just another sign that Trump would not heed the rules governing 2020's election. Bannon's fiery speech was a glimpse into a propagandist's mindset that drew on smears and distortions to fan partisan ill will. But his prediction of how Trump could claim an early victory was based on a flawed premise, because no early returns on election night were only going to contain the in-person votes cast on Election Day.

"The first reports are the county totals," said Chris Sautter, an attorney who has specialized in post-election challenges and recounts for decades. "You don't get the breakdowns [of votes cast in different categories such as early voting, mail-in votes, Election Day votes, and overseas votes] until after election night. It depends on the state."

Other election administration experts confirmed that the election night returns would be a mix of all of the earliest votes cast—from early in-person voting sites, from absentee ballots that had been returned and processed, and from in-person voting on Election Day. (As of October 15, more than 16 million absentee ballots had been returned or cast in early voting, the U.S. Elections Project said.)

"There's literally not a single credible journalist or analyst who would look at early returns in a close race with many ballots left to count and declare victory," said David Becker, the executive director of the Center for Election Innovation and Research. "If counting of all ballots magically ended at midnight on election night, we would have had a President Gore, and Donald Trump wouldn't have won the presidency."

"Most importantly, to do so would be to disenfranchise the millions of men and women in the military whose votes often don't arrive until after Election Day," Becker continued. "That said, many early in-person ballots and early-received mail ballots will be processed on election night, especially in states that allow early pre-processing of those ballots, such as Arizona, Florida, Georgia, North Carolina, and Ohio. So, many votes may be reported out that night."

Sautter and Becker, a former U.S. Department of Justice (DOJ) Voting Section attorney, operate in a world where facts, laws and election procedure dictate who wins elections—including post-election jury-like proceedings to ascertain voter intent on contested ballots. But the world of legal opinion is not the same as the sphere of public opinion, which is where Trump and Bannon shape narratives based on feelings, grievances and disinformation.

"Trump's strategy is to create chaos, uncertainty," Sautter said. "What Bannon is saying is if Trump is ahead on election night, I'm sure he will declare victory. Trump [also] may take some kind of legal action to try to stop the counting. I can't imagine that would be successful. It would be like Florida in 2018. They [Republicans] filed a suit there and it got thrown out."

"Distinguishing between these two things [electoral facts and fantasies] is really important," said Justin Levitt, who oversaw the DOJ's voting rights enforcement in the Obama administration. "I think there will be lots of the latter. I think there will be suits filed. I think there will be people screaming. I think there will be lots of tweets. What I have been saying of late is reminding people that a lawsuit without provable facts is just a tweet with a filing fee."

White Noise

But back in rural Virginia, Bannon spun out a narrative to a rapt audience that was filled with innuendo, grievances, premonitions and assumptions that the vote would be stolen.

"I don't like loose talk about civil war, but I got to tell you," Bannon continued, "when you hear what the Democrats are saying, what their rhetoric is. Remember, Hillary Clinton, their last presidential candidate, what did she say? Under no circumstances—no circumstances—is Joe Biden to concede… They're going to keep counting until they get 270 Electoral [College] votes for Joe Biden, right? They are going to be voting by the pound and voting by the pallet."

Actually, Clinton urged Biden not to concede on election night when votes were being counted, which is not the same as never conceding.

Bannon's deliberate exaggerations and accusations about manufacturing votes went deeper than GOP cliches about Democratic cheating. Bannon has long promoted a white-centric nationalism, notably as the former head of Breitbart News. Now, flying in the face of both democracy and fact, he is asserting that in-person voting on Election Day is more American, and is more accurate, than voting beforehand via a mailed-out absentee ballot.

"They can't beat Trump in the traditional way Americans have voted for 200 years," Bannon said. "You go into a booth, close the curtain. Only two folks know, you and God, know who you vote for. Write it down, bang, done. You vote by mail—look, I vote by mail. Sometimes, I'm [an] absentee [voter]. I understand it is a risk. Multiple people are going to put their hand on your ballot. And it may not end up being certifiable. That's the risk I took."

Rather than unpacking Bannon's distortions and contradictions—for example, absentee ballots originated in the 19th century's Civil War, and Trump votes by mail—it is important to grasp the big picture he painted. Bannon relegated votes cast by millions of people, dominated by Biden supporters, into a second-class status. And he disparaged people voting with an absentee ballot as weak and un-American, because they had fallen for media reports about the pandemic.

"You chose not to go to a poll," Bannon said. "The reason you chose is your mass media apparatus, which has dominated this country, was irresponsible and caused mass hysteria on your voters. That's your problem. You're not going to make your problem the nation's problem. And we will not back down one inch. And I'll tell you who is going to join us in that, a guy named Donald J. Trump."

The driving force behind Bannon's narrative, apart from a desire to keep Trump and the GOP in power, was polls and other voter data showing that more Trump supporters were planning to vote on Election Day and more Biden supporters were intending to vote with absentee ballots. In recent weeks, many Democrats have shifted their plans to voting early at in-person sites.

Bannon, nonetheless, built upon the lie that the pandemic was not a threat. He exaggerated problems in the little-known process of vetting returned absentee ballots. In that administrative process, a voter's identity is first verified by officials who review how their ballot-return envelope has been filled out and signed. Only then are ballots taken out and counted.

Bannon claimed that in New York City's June 2020 presidential primary, 30 percent of absentee ballots in Brooklyn and 20 percent of absentee ballots in Manhattan were disqualified because voters did not properly fill out envelopes or returned them too late. (Those high rejection rates did not occur across both boroughs, but only in specific localized settings. In 2018, the national rejection rate for absentee ballots was 1.4 percent, federal data reported. In Florida in 2019, it was 1.2 percent. In Wisconsin's primary this past April, it was 1.8 percent. Sloppy signatures, lines left empty and mistakes with filling out the envelope were the leading causes.)

"Right now… they've requested 1.5 million absentee ballots in Pennsylvania," Bannon said. "Ten to 20 percent will not be certifiable. What that means is it [is] going to be a dogfight in those rooms [in county offices where returned ballots are processed]. Remember, every ballot that can be certified should be certified. And that ballot should count. That's a vote. But you've got a lot of things that you [absentee voters] have got to check off to get to certification, because you chose—you chose—not to go to a poll."

As of October 15, Democrats requested 1.7 million ballots, Republicans requested 652,000 ballots, and other voters requested 290,000 ballots, the U.S. Elections Project reported.

Democrats and voting rights groups have filed scores of lawsuits to ensure that voters who incorrectly fill out a ballot-return envelope, or whose ballot is postmarked in time but does not arrive at election offices until after Election Day, will still have their votes counted. The Trump campaign and its allies similarly have intervened in those suits and filed their own suits to limit voting and vote counting options. Both parties are trying to shape the rules to their benefit, but some GOP suits are being filed for propaganda purposes and to undermine the results.

"Some of the lawsuits are being filed to generate public conversation that is misinformation or misleading about the illegitimacy of the process, about the existence of widespread voter fraud. These [claims] are not true," said Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice at New York University. "It's the same challenge that exists outside the litigation context. This has been part of the president's M.O. in the lead-up to this election."

There was no Democratic counterpoint to Trump's assertions that the expansion of voting by mail in response to the pandemic was inherently fraud-ridden, which Bannon implied.

"They just keep counting until they win," he said. "It's got to be fought. And where it's got to be fought is folks like you, as election officials, in that room, no back[ing] down. Every ballot has got to be certified. If it's by the rules, it's good. If it has any, a scintilla of not good, it's not certifiable. Sorry, not sorry, right?"

While Bannon predicted that Trump would declare victory based on partial results, and his campaign would fight to disqualify as many absentee ballots as possible, Bannon repeatedly said that it was the Democrats and their allies who were going to cheat to steal the 2020 election.

"We're not going to allow this election to be stolen, either through some shenanigans in the courts or some shenanigans in mail-in ballots that nobody can actually process," he said. "That will not happen. And the way to make sure that does not happen is, number one, set the predicate on November 3 [by Trump declaring early that he won]. Once we set that predicate that Trump's the winner on Election Day, that is mighty hard to unwind."

"He's [Trump] is not going to go quietly into that good night, trust me," Bannon continued. "He's going to put up a big victory on… [November 3] and he's going to want his troops to back him up on it. So, look, we have a long haul. I don't think this thing will be determined… until right before Inauguration Day… The Democrats have no intention of conceding."

Bannon's narrative hinges on his belief—which may be shared by Trump—that officials will segregate Election Day votes from the other ballots that have been cast and counted by election night. But that's not how officials count and release early returns. Moreover, those early returns will include a record number of voters who cast their absentee ballots early and who voted at early voting sites.

American elections do not have separate and unequal ballots.

"We've always counted ballots for days after Election Day, and we will do so once again," said Becker. "This is normal, and anyone who seeks to change the rules and put an artificial deadline on the process only reveals their ignorance."

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

This article was produced by Voting Booth, a project of the Independent Media Institute.

Trump gave his blessing for right-wing groups to threaten the election — and voting advocates are worried

For weeks police and private intelligence circles have predicted "coming violence" from right-wing vigilantes at some polling places in presidential battleground states. But President Trump's debate message to a white power group to "stand back and stand by," despite his retraction, has turned online chatter among extremists into organizing actions targeting Election Day, according to the FBI's former counterintelligence director Frank Figliuzzi.

"What we are seeing include calls for civil war, race-based conflict, and for increased acquisition of weapons," said Figliuzzi, speaking at an October 2 briefing by the Lawyers' Committee for Civil Rights Under Law on voter intimidation threats and responses. "Right-wing extremist groups, including QAnon, Proud Boys, Boogaloo Boys and violent militia groups, are all using the language of violent conflict in both their public and in their private communications online."

"They are also calling for a physical response and presence at the polling places," he said. "The specter of people who are violent in nature and have violent agendas, and often come armed with long guns, is becoming a very real possibility."

The Lawyers' Committee briefing suggested that recent incidents where Trump supporters have badgered voters and election officials in blue epicenters may be signs of bigger trouble as Election Day nears. Both parties have stepped up recruitment of partisan poll watchers and, in Trump's case, voting vigilantes.

While the committee's briefing emphasized there were laws protecting voters from last-minute electioneering and intimidation, as well as rules that regulate what partisan observers can and cannot do at election sites, its message was that public officials must speak out more forcefully to reject voter intimidation at polls or in the streets, and say how authorities would respond should it occur.

"One step that election officials can make is to make clear the campaign-free zone that applies in their states," Kristen Clarke, the Lawyers' Committee's president and executive director, said, referring to the buffer zone that surrounds polling places or buildings with voting sites inside, where supporters of candidates and causes cannot campaign. "In every state there is a certain perimeter in which electioneering activity is prohibited, and [in] which intimidating activity would also be prohibited."

"Officials often do a good job promoting the time and date for elections, and what's on the ballot," Clarke said, referring to the public information campaigns that have increased since Labor Day. "Going one step further to make clear that no intimidation is allowed within a certain zone outside the doors of a polling site would be one small step."

Local and state prosecutors should take strong stances condemning any menacing presence at polls, she added, especially since the U.S. Department of Justice has abdicated that role under Trump. "This may be a moment where we lean on state and local law enforcement to step into those gaps."

"There is also a tremendous role to play for law enforcement leaders in terms of messaging," agreed Kenneth Polite, former U.S. attorney for the Eastern District of Louisiana, speaking at the same briefing. His recommendation included "making public statements that emphasize… their commitment to protecting these constitutional rights, including their roles of protecting [against], evaluating and prosecuting this type of intimidation."

The week after the Lawyers' Committee's briefing saw some officials beginning to speak out. On October 6, the attorneys general of Michigan, Wisconsin and Nevada, all Democrats, held a video press conference where they condemned Trump's call for unofficial poll watchers and vowed to prosecute voter intimidation. Other recent news reports have noted that local election administrators and police have been reevaluating their security plans.

Not a Normal Election

There were many reasons behind today's worries about voter intimidation that set 2020 apart from threats of election violence in the recent past, the committee's experts said. Foremost was Trump's role as an "instigator or radicalizer" with his attacks on the voting process and calls for supporters to confront what Trump said would be cheating by Democrats. Another factor was in 2018 the Republican National Committee was freed from a decades-old federal consent decree that barred it from using voter suppression tactics. And another was scenes from Midwestern states where right-wing zealots brought military-style guns into statehouses while protesting government-ordered COVID-19 precautions.

The most likely targets for voter intimidation were not polling places randomly chosen from the 100,000-plus voting sites that will be open on Election Day, November 3, the experts said. The targets would likely be polling places in communities of color in swing states, they said, especially in locales where anti-police brutality protests and Black Lives Matter rallies have occurred.

The fact that these settings have residents who distrust the police adds a complicating layer when it comes to how authorities will intervene should legal electioneering cross the line into illegal voter intimidation, disturbing the peace or criminal violence. Police have more authority than election officials to respond if threatening behavior or violence arises at polls or in the streets, but many voters in communities of color don't want to ask the police for help—or believe that the police will protect them—voting rights advocates said.

"It's one thing to say we need folks [waiting to vote] to be tougher. It's another thing to say, 'Who is going to protect you?'" said Jorge Vasquez Jr., Power and Democracy Program director for the nonprofit civil rights law firm Advancement Project. "[If] you're a Black or a Brown voter, and you see how Black or Brown people are being treated by law enforcement, you would understand that you're really talking about [a situation in which your]… life may be on the line in a way that it hasn't been in the past."

Gray Zones

Vasquez has been meeting with local police in six swing states—Arizona, Michigan, Pennsylvania, Virginia, Georgia and Florida—to try to set some ground rules in communities of color before Election Day. His efforts to get police to negotiate and sign memorandums of understanding about how they will engage with voters this fall had similarities to those of protest organizers engaging with law enforcement before holding rallies and demonstrations.

The problem facing both voting rights advocates and officials is not people respectfully exercising their First Amendment rights, but rather with dealing with provocateurs who disrupt events and seek to provoke a police response that interrupts others from exercising those rights, Edward Maguire, a professor of criminology and criminal justice at Arizona State University, recently told NPR. "Police know how to handle peaceful protests. The harder part is when you have that gray zone in between, where you have protests that are largely peaceful, but you have people who are behaving in a violent or destructive manner."

When it comes to campaigning and voting on Election Day, there can be several gray zones. The first is where one person's actions in support of a cause—called electioneering—are legal but may be intimidating to others who don't share their views or ideology. Then there are clearly intimidating actions that likely violate election or criminal codes, if those actions were being monitored and those laws were being enforced. But people in opposing political parties and local authorities may not see or judge the same actions the same way.

There are a series of state and federal laws that protect voters. The most obvious are buffer zones around the entrances to polls where electioneering is not allowed. These distances are specified in state law and vary, from 10 feet in Pennsylvania, to 40 feet in Virginia, to 100 feet in Wisconsin and Michigan, to 150 feet in Florida and Georgia. There are state and federal laws barring voter intimidation, rules governing the conduct of partisan observers in election sites, and laws outlawing any election-related violence. (On the other hand, it is legal to bring guns into polls in Michigan, North Carolina, Pennsylvania, Virginia and Wisconsin, gun control groups have reported.)

There were two recent widely reported instances of Trump supporters badgering voters and election officials that illustrate the clear lines and ambiguities that arise as voters and authorities respond to loud but legal electioneering, and to what one seasoned observer concluded was illegal voter intimidation.

A clear line was seen in Philadelphia, where Trump supporters demanded to observe the start of early voting at a satellite voting center just before 2020's first televised presidential debate. Perhaps the gambit was a stunt to give Trump fodder to smear the city's elections, which he did. But local election officials told the Trump supporters that they could not stay because they had not followed the process to become credentialed partisan observers.

A blurrier line emerged during the first weekend of early voting in Fairfax County, Virginia. In that diverse Washington, D.C., suburb, a caravan of Trump supporters drove into the parking lot where voters were lined up at the county's government center, some revving their engines, which upset some voters. A small band of Trump supporters got out of their cars and trucks and converged at a plaza near the entrance, where they waved banners and cheered for Trump. Some voters who felt intimidated alerted officials, who came out, spoke to the campaigners, and then opened the government center so voters could wait inside in the hallways.

"There are two factors that go on that you should be thinking about," said Kevin Kennedy, who was Wisconsin's top statewide election official from 1982 to 2016 and a lawyer. "There's the electioneering factor, which is trying to influence voting. 'Don't vote for that jerk,' 'Vote for this party,' or whatever. And in Wisconsin, that [electioneering] stops 100 feet from the entrance of any building containing a polling place with the exception of a sign on private property."

"The second factor is you cannot interfere with the orderly conduct of the election," he said. "The general definition of disorderly conduct is something that tends to disturb the peace or create an issue… I would say that driving a truck through a parking lot [to disrupt waiting voters], even if you are more than 100 feet away, would probably qualify [as intimidation]. The question then is resource allocation for law enforcement."

Kennedy's last point highlights another gray zone that affects when and where police might step in—if they were present or were called upon to do so.

Election officials have narrower authority than the police to deal with bad behavior as it moves from the polls to the street. Kennedy concluded that Trump supporters toying with Fairfax County voters outside of Virginia's 40-foot electioneering boundary was illegal voter intimidation, but it did not prompt arrests. Since the incident, county officials are seeking to extend the buffer zone to 150 feet.

"We need individuals to use their discretion in a way that promotes democracy," said the Advancement Project's Vasquez. "I've seen in 2018 in Florida, voters come with horses waving an American flag where there are people with long lines, similar to the pickup trucks [in Fairfax County]. It is fact-specific and looking at the totality of the circumstances."

What Kind of Police Presence?

How visible police should be at polls, especially in communities in color, is a complicated question.

"The polling station has historically been a militarized space for Black voters," said Jeralyn Cave, Vasquez's colleague and Advancement Project spokeswoman, citing America's history of white vigilantes, segregation, Jim Crow and recent partisan voter suppression.

"So many people [police] don't want to use their discretion as it relates to elections," Vasquez said. "But any other time, they are willing to use their discretion. Most recently, I think what we could compare it to is we have millions of people storming the street to practice their First Amendment right to peaceful[ly] protest [police brutality]. And we have some police officers who are deciding that, 'You know what, you guys are in a group during a pandemic, and we're going to use our discretion to either charge you with something or not charge you with something.'"

The question, then, becomes one of nuance. What can government officials do now to assure voters in battleground states that voting this fall will be safe? Vasquez has been trying to negotiate ground rules with police in communities of color in swing states. But as of October 2, Cave said that no law enforcement agency had signed any memorandum of understanding.

Other voting rights advocates, such as the Lawyers' Committee's Clarke, did not want to see more police at polling places.

"In no uncertain terms, we object to the presence of law enforcement at the polls," she said at the same briefing where Figliuzzi described the growing threats from right-wing militants. "We observed in Wisconsin, officials resorting to using the National Guard to fill in gaps as they worked with insufficient numbers of poll workers. Many of them were in plain clothes. We're very concerned about any further efforts to activate law enforcement in any further fashion at polling sites, particularly in the communities with large numbers of voters of color."

Figliuzzi replied by listing some "warning signs and indicators" to look out for.

"One would be the presence of federal agents of any kind deployed to polling sites, which might, as you heard, be a specific violation of law," he said. (Armed federal agents and military personnel are not permitted at polls, despite Trump's claims.)

"Secondly, I would be particularly vigilant for any reports that off-duty police officers have been hired by any private organization, or an organization that may be linked to a particular campaign, to conduct some kind of so-called security or monitoring," he said. "That would be very troubling, particularly since many [police and sheriff] departments are canceling all off-duty work, or other duty work, because of the concerns about the polling place [on Election Day]."

But there were low-key roles that police could play to keep poll settings orderly.

"We don't want to call out [oppose] perimeter security, parking lot traffic management type things that will get people in and out safely," Figliuzzi said. "But [we] want to watch for the warning signs that would tell us that something is amiss with the presence of law enforcement."

The Lawyers' Committee briefing ended by imploring government officials, not just election administrators, not only to be more vocal about protecting the health of voters during a pandemic, but also to publicly state their commitment to voter safety in swing states. Journalists, too, should pressure state and local officials, they said. The panel's experts did not trust the federal Department of Justice's efforts to protect voters.

"Reporters should feel free to ask their law enforcement leaders—[police] chiefs, sheriffs, state officials—will you be setting up a command post or joint operation unit with law enforcement and federal partners for the election?" Figliuzzi said. "Will you be issuing press releases that remind people what the law is and what is permitted? Will you be engaging in proactive dialogue through your intelligence officers with known leaders of activists or groups? Will you be considering designated protest areas away from the polling place?"

What should voters do if they face intimidating actions at the polls or in the street?

"You never want anyone to be confrontational. And do document what is happening," Vasquez said. "Know who to contact. Certainly, contact Advancement Project's national office with any questions you have. Reach out to us on social media. We'll help you assess the situation and find a plan through it. But at this point, the best thing you can tell anyone is 'Don't be confrontational.'"

"It's not your place to necessarily be confrontational," he emphasized. "But it is your place in being able to safely cast a ballot."

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many other

This article was produced by Voting Booth, a project of the Independent Media Institute.

Conservatives want to block $300m in election funds from states — but they'll fail

After local election officials from more than 1,100 jurisdictions in 40-plus states applied for private grants to better run the presidential elections, a conservative public interest law firm has sued three swing states to block officials from using those funds, stating in their briefs that "they do not want progressive candidates to win."

In addition to alleging that county and local governments in Pennsylvania, Wisconsin and Minnesota lacked the authority to take the money from the Chicago-based Center for Tech and Civic Life (CTCL), the lawsuits from the Thomas More Society, the socially conservative firm, are claiming that the grants have a partisan benefit of favoring "progressive" candidates because some recipients included metro counties—which tend to be blue epicenters.

"To be sure, CTCL is free to directly spend its $250 million private federal election grant fund to get out the vote in Pennsylvania; but, federal election law leaves discretion to the 'states,' not the counties and cities, on how to implement federal elections," the group's Pennsylvania lawsuit said. "The plaintiffs are injured by CTCL's private federal election grants because they are targeted to counties and cities with progressive voting patterns."

Election experts said that the lawsuits seeking to block governments from using funds donated by Facebook founder Mark Zuckerberg and his physician wife Priscilla Chan stood little chance of success. But the suits typified the outbreak of partisan litigation in 2020 where Democrats have sought to make voting in the pandemic easier, while Republicans have opposed those efforts—most notably, blocking federal funding, which led to the Zuckerberg-Chan grants.

"The [lawsuits'] arguments are patent nonsense," said Justin Levitt, who was deputy assistant attorney general in the U.S. Department of Justice's Civil Rights Division during the Obama administration and now teaches constitutional law at Loyola Law School in Los Angeles.

"It's possible that there are limitations in state law that I don't know about. But the arguments based on federal law are simply embarrassing," Levitt said. "They're [suing] based on the presumption that Congress, in granting states money for election administration, meant to preclude any other entities from getting any other money from any other place."

"The biggest problem with that argument is Congress neither said nor implied that anywhere," he continued. "Nor would there have been any reason for Congress to say that they, and they alone, were the only possible sources of money for local governments to run elections."

Tammy Patrick, a former Arizona elections official, a CTCL board member and now an adviser at the Democracy Fund, a bipartisan foundation, rejected the lawsuits' charge that the grants had a partisan agenda. Rather, the communities that were initially awarded funding were the cities and counties that had the hardest time this spring with holding an election in the pandemic. The metro areas saw the biggest disruptions, from exoduses of poll workers to last-minute polling place closures and relocations, to technical issues with new voting systems—all as record volumes of voters cast mail-in ballots for the first time.

"Those are locations that in this global pandemic are seeing some of the largest shifts in the way in which they are conducting their elections. And they were struggling the most in the primaries," Patrick said. "We all heard about Wisconsin. We all saw the things happening in those early primaries… That's really where the focus was for the first [grantmaking] phase. And the second stage is wide open to any jurisdiction and they now have heard from, and have [acted on] grant applications, in 40-some states."

Patrick was not surprised by the litigation, as the 2020 election has seen more aspects of the fine print of election administration become focal points of lawsuits than ever. The litigation has made the job of running an election amid a health crisis more difficult, she said.

"There is litigation being proposed in this country on absolutely any facet of the election administration process and voter access that people can write down on a piece of paper as a lawsuit," Patrick said. "We're seeing litigation around this situation [CTCL grants], where our [state and federal] governments have failed to fully and adequately resource local election officials to be able to service their voters in a pandemic. We see litigation around how many drop boxes can be allowed [in Pennsylvania and Ohio]. We see litigation around being able to have poll workers in a park in Wisconsin on a Saturday to allow voters to drop off ballots."

"One might expect [lawsuits] in a presidential election," she continued. "But when you layer in the additional complexity that we are in a global pandemic, and Republican and Democrat and independent secretaries of state [and] local election officials are literally pleading with their state legislatures, with their governors, and legislative branches, and others, to allow them to service their voters well; to resource [assist] them properly; to allow them the policies they need in this moment; and [that the result] in too many places [is] they [local election officials] are being denied on all three of those fronts."

Jordan Shuber, the lead lawyer on the Pennsylvania lawsuit, directed all questions on the suits to Erick G. Kaardal, a Minnesota lawyer, who also signed the three states' complaints.

Kaardal did not respond to a phone call and email seeking comment. (The Minnesota group he represents has also sued to block a face mask requirement for the state's polling place voters. His firm was also involved in the failed effort to put rap star Kanye West as a 2020 presidential candidate on the Wisconsin ballot.)

Fortifying Election Preparations

The Zuckerberg-Chan donation of $250 million to CTCL for grants to local jurisdictions and an additional $50 million to the Center for Election Innovation and Research (CEIR) for grants to state election agencies was the highest-profile private effort to make up for a lack of federal funding to cover the unexpected costs of running an election amid a national health crisis.

An unprecedented number of local and state officials have embraced the funding. The CTCL grants, to 1,100 local government agencies that run America's elections, represent more than one-tenth of the country's election offices. CEIR's grants, primarily for public education purposes, have gone to about half of the states.

Experienced administrators know what they want to do. As before the pandemic, they must offer a variety of voting options: voting with mailed-out ballots, and in-person voting, either early or on Election Day. In early September, the Wisconsin Elections Commission issued its presidential election readiness assessment that contained reports in its appendix from metro-area officials on their plans. Those summaries listed needing more supplies, staffing, voting equipment, public education materials and postage to make voting efficient and safe. After Congress did not appropriate more funds for these purposes, the grants filled that void.

"The pressure these funds take off the shoulders of the front-line people trying to implement the law during this pandemic cannot be overemphasized," said one unidentified grantee in a September 25 program update on CTCL's website.

"Thank you so much. We are a small rural township, and this will be a huge help," said another grantee in that same September 25 update.

"Our job is to get funding into the hands of local election officials, then get out of their way," the update said. "We leave spending decisions to the discretion of each grantee jurisdiction, as long as the election activity falls under these four broad categories: Ensure Safe, Efficient Election Day Administration; Expand Voter Education and Outreach Efforts; Launch Poll Worker Recruitment, Training and Safety Efforts; [and] Support Early In-Person Voting and Vote by Mail."

Patrick offered more detail on how the funds would be spent. The grants were "not so much for large technology" acquisitions, she said, such as high-speed scanners for counting ballots or sorting returned absentee ballot envelopes—although some cities were using funds for that. Instead, most funds were "for the general support of hiring more poll workers than normal, hiring and having to pay for polling place facilities to be cleaned, and/or [renting] the facilities themselves because they have had so many denials [due to COVID-19 concerns]."

Still, Patrick said that some hardware to be acquired, such as a desk-size machine that opens envelopes and removes absentee ballots, would speed up the pre-ballot counting work.

"When you think of the alternative to a ballot extraction machine, it's two people, a Democrat and a Republican, sitting on either side of a table with letter openers opening up tens, if not hundreds or thousands of envelopes," she said.

The grants would hire more election workers to help with the routine tasks tied to sending out absentee ballots and processing them upon their return, Patrick said. Many of those tasks, unlike being a poll worker, did not require that much training because they were repetitive.

"Part of what some jurisdictions are using the additional funding for is to bring in more assistance, more physical human help, at every stage," she said. "It does allow them to move staff around so that they can have their permanent staff shift to the more complicated or complex jobs [such as authenticating voters or verifying signatures], and then have other individuals who don't have the same level of experience doing the more mundane tasks that our elections tend to rely upon, like taking a ballot out of an envelope and unfolding it."

Patrick said that it was not too late for local election officials to bolster their staffs and streamline their ballot-handling and vote-counting processes. The exception, she said, would be states that have already begun to process returned absentee ballots, as the equipment and the steps involved could not be altered once that process has begun.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

This article was produced by Voting Booth, a project of the Independent Media Institute.

Trump appears to be inviting a constitutional crisis

This story first appeared at Voting Booth.

In the first televised presidential debate, President Trump questioned the ability of America's election officials to conduct an honest election this fall and said that he would not sit idly by "if I see tens of thousands of ballots being manipulated. I can't go along with that."

"It means you have a fraudulent election," Trump continued, speaking over moderator Chris Wallace of Fox News, who asked both candidates if they would pledge to not "engage in any civil unrest" and "not declare victory" until all of the votes had been counted.

"You're sending out 80 million ballots. They're not equipped—these people [election officials, postal workers] are not equipped to handle it—number one," Trump said. "Number two, they cheat. They cheat. Hey, they found ballots in a wastepaper basket three days ago and they all had the name military ballot. They were military. They all had the name Trump on them."

Former Vice President Joe Biden, countered, "He has no idea what he is talking about. The fact is I will accept it [the results] after complete count. And he will too. You know why? Because once the winner is declared after all the ballots are counted, all the votes are counted, that'll be the end of it. That'll be the end of it."

Never before in modern history has a presidential debate ended with the incumbent refusing to say whether he would accept the results of an upcoming election and not agreeing to an orderly post-Election Day process—and the challenger saying that it doesn't matter what the incumbent mistakenly believes, if he's voted out of office he will have to leave.

Beyond Trump's nonstop interruptions, accusations and bellowing that marked the debate, the president appeared to be inviting a constitutional crisis if the margins are close in swing states and the results were not known on Election Day, November 3—which they almost certainly will not be, because, as Wallace noted, eight states only start processing absentee ballots that day.

"Can you imagine where they say you have to have your ballot in by November tenth, November tenth," Trump said. "That means, that's seven days after the election [winner] in theory should have been announced. We have major states with that. All run by Democrats. All run by Democrats. It's a rigged election."

Trump also said that he expected the U.S. Supreme Court to get involved—including the participation of his latest nominee, Amy Barrett, if she is seated by then.

"I am counting on them [the Supreme Court] to look at the ballots, definitely," Trump said, in response to Wallace's question. "I hope we don't need them for the election itself. But for the ballots, I think so. Because what's happening is incredible. I heard, I read today, where at least 1 percent of the ballots for 2016 were invalidated. They take 'em. 'We don't like them. We don't like them.' They throw them out left and right."

Trump's false claims about widespread voter fraud in absentee—or mailed-out—ballots was not new. But the intensity of his belief that the 2020 election outcome was rigged against him unless he wins (which he also said in 2016) reached a new pitch in Tuesday's debate. Trump's misrepresentations of the voting process were as shrill as they were rampant, but, in sum, Trump basically said that he all-but expected to aggressively assail the election results.

What was most notable about Trump's assertions—beyond a demeanor that hovered between being anxious and unhinged for most of the debate—was that he repeatedly cited instances of mistakes in the voting process affecting a literal handful of votes. He had no perspective or sense of scale, whatsoever, that the issues he saw were rare exceptions and not the rule.

His rant about military ballots in a waste basket referred to a now-fired temporary election worker who mistakenly threw out 9 ballots in Luzerne County, Pennsylvania, last week—of which two ballots did not contain Trump votes, despite what he said. That error should have been easily resolved by local election officials, but the Justice Department heard about it and opened an investigation in a state where 6 million people voted for president in 2016.

Trump cited other examples that showed blemishes, not fatal flaws, with locally run elections. He railed that his supporters were not allowed to observe early voting in Philadelphia on Tuesday, which he called a crooked city. The reality was no election observers had been credentialed yet. He said mailmen in West Virginia were "selling the ballots," which referred to one person who authorities caught and prosecuted, showing that the system worked, as Amber McReynolds, executive director of the National Vote at Home Institute (NVAHI), said after the debate.

"People on both sides of the aisle should be outraged by the level of misinformation about safe options for voters," NVAHI tweeted. "Voting by mail is a fundamental part of American voting. They deserved to hear the facts tonight."

Biden's Response

Biden didn't allow Trump's assertions and propaganda to go unanswered. His opening comments in the debate's final segment, on accepting the results and pledging not to foment civil unrest, was one of many attempts to factually talk to Americans about voting.

"His own Homeland Security director and, as well the FBI director, says there is no evidence at all that mail-in ballots are a source of being manipulated and cheating," Biden said. "The fact is there will be millions of people because of COVID voting with mail-in ballots, like he does, by the way. He sits behind the Resolute Desk [in the Oval Office] and sends his ballot to Florida."

Biden said Trump's smear of election officials and voting by mail—the healthiest option for many people in the pandemic—was a continuation of his effort to suppress voter turnout.

"This is all about trying to dissuade people from voting because he's trying to scare people into thinking that it will not be legitimate," Biden said, before pivoting to his message.

"Show up and vote," he continued. "You will determine the outcome of this election. Vote. Vote. Vote. If you're able to vote early in your state, vote early. If you're able to vote in person, vote in person. Vote whatever way is the best way for you. Because you will—he cannot stop you from being able to determine the outcome of this election."

"And in terms of whether or not, when the votes are all counted, and they all are accounted, that will be accepted," Biden said. "If I win, that will be accepted. If I lose, that will be accepted. But, by the way, if in fact he says that he is not sure what he's going to accept, well, let me tell you something. It doesn't matter, because if we get the votes, it's going to be all over. He's going to go. He can't stay in power. It won't happen. It won't happen."

"So, vote, just vote. Make sure you understand that you have it in your control to determine the way this country going to look like for the next four years," he concluded. "Is it going to change or are you going to get four more years of these lies?"

But just because Biden said that Trump will have to accept the election's results once the votes are all counted does not make it so. Biden was correct that the surest way to end Trump's presidency was with unassailable vote margins, which include the incomplete tallies on Election Night (which are from polling places, and, depending on the state, varying percentages of absentee ballots.) But Trump is counting on tight but incomplete early returns where he can exaggerate the problems that always surface on Election Day to discredit the popular vote.

Trump wants the Supreme Court to step in, he said during the debate. He did not say that he has also talked about red state legislatures appointing Electoral College slates that back him—disregarding their vote counts. Or other scenarios where he can retain the presidency.

"This is going to be a fraud like you've never seen," Trump said. "When you have 80 million ballots swamping the system, you know it can't be done. You know it can't. And already there's been fraud… it's a disgrace."

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