The election is in 94 days. Will the results be seen as legitimate?
It wasn’t just the voting machines that blew a fuse during Georgia’s primary election in June.
The rollout of 30,000 new voting machines, which required far more electrical capacity than their predecessors, would have been challenge enough for the state’s election officials, who scrambled to find polling locations with enough space, outlets, and wattage for the new equipment. Add the need for social distancing and a dearth of available poll workers, and counties were forced to reduce the number of polling places, leading to long lines – in some Black communities frustrated voters had to wait until after midnight to cast ballots.
“Even before you introduced the pandemic, the new voting machines were daunting,” says Dele Lowman Smith, a member of the Board of Elections in DeKalb County, a majority African-American county that includes part of the Atlanta metro area. “You layer the pandemic on top of that, and it was a nightmare scenario.”
The logjams occurred despite the fact that more than half of voters cast an absentee ballot – a 2,500% increase compared with the 2016 primary. It took more than a week to process all those ballots, delaying final results. In New York, where about 1 in 5 absentee ballots have been invalidated, it’s taken more than a month, prompting lawsuits.
The primaries in Georgia, New York, and Wisconsin earlier this year have been held up as examples of what could go wrong on Nov. 3 – how long lines, difficulties processing a surge of absentee ballots, and delayed results could open the door to narratives about voter suppression and voter fraud, undermining the legitimacy of an election widely seen as the most consequential in decades. Meanwhile, registration of new voters has been lagging by as much as 95% in some states.
“COVID is causing us to have these huge technical or administrative challenges in running the election,” says Edward Foley, a constitutional law professor at Ohio State University, whose September 2019 paper on a potentially disputed election has suddenly gotten a lot of attention in recent weeks. “But even more worrisome, in my view, is that the politics and our psychological attitude about the politics may be a barrier to accepting the sense that we have completed the election and have an authentic result.”
In his law review article, he envisions a hypothetical scenario in which the entire election comes down to the swing state of Pennsylvania. On Election Night, the vote tally shows President Donald Trump leading by 20,000 votes, but the media say it’s too close to call and his Democratic opponent refuses to concede. Protests break out in the streets as vote-counting continues and Mr. Trump’s lead dwindles. Then, updated numbers show his opponent pulling ahead, and the Democrat proclaims victory. “THIS THEFT WILL NOT STAND!!!” the scenario envisions Mr. Trump tweeting. “WE ARE TAKING BACK OUR VICTORY.”
Since Professor Foley laid out the potential for a disputed election, the pandemic and the corresponding surge in mail-in ballots has opened the way for other disturbing scenarios. For example, if the election comes down to a swing state like Florida, where absentee ballots cast by young and minority voters were invalidated at disproportionate rates in 2016, the president could win by a smaller margin than the number of invalidated ballots – leading Democrats to claim his victory illegitimate. Or thousands of ballots could mysteriously go missing en route to voters or on their way back to election officials, as they did in Wisconsin’s primary this year, while the president squeaks by with a margin of just several hundred votes – unlikely, but not impossible. (In the 2000 election, George W. Bush won the decisive state of Florida by just 537 votes.)
Alternatively, in a more dramatic version of Professor Foley’s hypothetical outcome, Mr. Trump could have a clear lead on Election Night, but Democrats’ disproportionate use of mail-in ballots could then result in a dramatic shift in former Vice President Joe Biden’s favor – leading the president to challenge the validity of those votes, claiming that some ballots may have been sent to ineligible voters or filled out under coercion from Democratic campaign workers.
Those and many other nightmare scenarios are proliferating in the minds of people who are paid to lose sleep over such things. And as daunting as the technical and administrative challenges may be to carrying out an election amid a pandemic, the greater hurdle may be Americans’ declining trust in democratic institutions, including the electoral system.
President Trump’s drumbeat of warnings about voter fraud since before he was even elected – for which he has never produced any substantial evidence – have alarmed Democrats, some of whom worry he will refuse to vacate the White House even if beaten at the polls fair and square. Meanwhile, Republicans aren’t sure Democrats would actually accept a Trump reelection, particularly if any irregularities are discovered – or if foreign interference is suspected.
A key sticking point is expanded mail-in voting, touted by Democrats as critical to ensuring that everyone can safely cast a ballot amid the pandemic. While even Mr. Trump has come around to supporting absentee ballots, which voters must request, he and other Republicans worry that if states simply mail ballots to everyone on their voter registration rolls without first cleaning up those lists, ballots could end up in the wrong hands. And while the overall rate of known voter fraud is extremely low – one study put it at less than 0.00000013% of ballots cast in federal elections – the possibility for friends, family, or even campaign workers to influence the decisions of voters who use mail-in ballots has raised concerns among conservatives. A wave of GOP lawsuits is challenging various state efforts to expand mail-in voting ahead of November.
According to a new Reuters/Ipsos poll, about three-quarters of registered voters are worried about voter fraud, and a similar proportion expressed concern about voter suppression, with significant bipartisan overlap. The poll was conducted online and had a credibility interval of plus or minus 4 percent.
“The question is whether we have a result that a majority of the public believes was credible and has integrity. A big part of that is going to rely on the losing candidate accepting the results,” says Matt Mackowiak, a Republican political consultant based in Austin, Texas. “I do hope the losing candidate, whoever it is, puts the country first at that time. This is the first election where you can credibly wonder whether that will occur – and that is a scary thing.”
The disputed election scenario
One key to thwarting competing narratives about who won is to get media outlets to change the way they cover Election Night results, says Norman Ornstein, a resident scholar at the American Enterprise Institute in Washington, D.C., who is organizing a media summit in September to foster a discussion of such issues. For example, even if 100% of precincts are reporting, that won’t mean that 100% of votes have been counted, because those totals won’t include mail-in ballots.
“You need to be able to say, ‘Remember, everybody, what you’re seeing on that screen is perhaps a third of all the votes that have actually been cast in this election. So the totals you see there may have little connection to the final outcome,’ ” says Dr. Ornstein. “Because of course one of the things we’re worried about is Donald Trump saying, ‘See? I’ve won.’ ”
In a recent interview with Chris Wallace of FOX News, the president claimed that “mail-in voting is going to rig the election,” prompting Mr. Wallace to ask the president if he would accept the results of the election and ensure a peaceful transition of power.
Mr. Trump refused to answer yes or no, and blamed Hillary Clinton and her party for failing to accept his election. “From before I even won, I was under investigation by a bunch of thieves, crooks,” he said, referring to the FBI’s investigation into suspected Russian collusion, in the course of which the agency relied on uncorroborated claims from the Steele Dossier to wiretap Trump campaign associates.
When Mr. Trump floated delaying the election in a July 30 tweet, many Republicans lawmakers and governors pushed back sharply. But his base may be more willing to follow his lead. “If he says it was stolen, they’ll think it was stolen,” says Republican strategist Ed Goeas, president of The Tarrance Group, a survey research group in Alexandria, Virginia.
Likewise, many Trump supporters may not trust legacy media institutions’ call on a close election, after four years of seeing those publications pillory the president, and the president labeling them “fake news.”
To avoid disputed elections, the mantra of election officials has long been, “Lord, let it be a landslide,” says Dr. Ornstein.
But there’s no guarantee of that this fall, even if many polls currently show Mr. Biden with a substantial lead less than four months out.
A month before the 2016 election, Hillary Clinton was heavily favored to win, but the election was ultimately decided by a group of people not even big enough to fill the University of Michigan football stadium, spread out over several Midwestern states. If key swing states see such razor-thin margins again this year, even a small rate of undelivered or invalidated absentee ballots could tip the election one way or another.
The closer the race, and the more mail-in ballots there are, the longer it could take to determine a final result. Professor Foley says that from a legal perspective, it’s not an issue if it takes time, so long as the right process is followed. But it will require a shift in voters’ expectations, after years of seeing a victor declared on Election Night.
“As a matter of law, you never have an official answer as to who won the states until there’s a certification of the vote tallies. That’s never on Election Night,” he says. “Normally there’s no problem – it’s clear who the winner’s going to be on Election Night, there’s a concession speech, and everything else is a formality.”
If such clarity is lacking this year, he says the country will have a choice over whether to follow the Bush v. Gore model of 2000 in which the Supreme Court ultimately had to settle a dispute over the Florida recount, or the example of oft-forgotten presidential elections in 1884 and 1916, when it took weeks to determine the results but both parties agreed on the outcomes.
In 1884, Republicans were concerned over possible Democratic corruption led by Tammany Hall, and both parties had hawk-eyed lawyers monitoring the vote count ballot by ballot. In the end, Republicans conceded that the Democrats really had won more votes, fair and square, and conceded the election to Grover Cleveland.
Mr. Mackowiak says he expects an “unprecedented election integrity effort” on the Republicans’ part, sending lawyers to battleground states to ensure that electoral laws are being enforced. “I imagine that those efforts will be better funded, more aggressive, and numerically larger than they’ve ever been,” he says. Democrats are also preparing to deploy thousands of election monitors and lawyers, and have hired voter protection directors in 19 states.
“There are so many eyes on this presidential election, we have to hope that the counting process will be fully transparent – and if it is, we should be able to have confidence in the results,” says Professor Foley. “If every single American was able to look at the situation with ideal objectivity, despite their own political preferences, I think there would be very few breakdowns of the electoral process that couldn’t be resolved.”
Teen poll workers and NBA arenas for voting
Across the country, many Americans are already springing into action to help pull off a fair election amid the pandemic. Iowa’s Republican Secretary of State Paul Pate is recruiting high schoolers as poll workers, replacing senior citizens who are staying home due to COVID-19 concerns. LeBron James and other basketball stars have formed a group, More Than a Vote, to increase African-American voter registration and fight voter suppression – including by opening NBA arenas in Atlanta, Detroit, and Milwaukee for early voting.
Pennsylvania, Rhode Island, and Colorado have deployed an extensive network of drop boxes for absentee ballots to circumvent issues with the beleaguered United States Postal Service, where cost-cutting measures are causing delays in delivery times. States are working closely with the FBI and the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) to protect against cyber intrusion into electoral systems, after Russia was discovered to have targeted such systems in all 50 states in 2016. And organizations like Vote at Home, run by Denver’s former director of elections, Amber McReynolds, are helping understaffed election offices prepare for a deluge of absentee ballots and ramp up their communication strategy to ensure that voters are clear on where, when, and how they can cast their ballots.
“Most [election] offices operate with very few resources, and communications tends to be one of those add-ons that are not always prioritized,” says Ms. McReynolds, whose organization is rolling out a toolkit on Aug. 6 with recommended timeframes for communicating with voters, and even social media posts that can be copied and pasted. “If you have no staff, you as the clerk can basically take it and run with it.”
Following the 2018 election in Georgia, which sparked a lawsuit by losing gubernatorial candidate Stacey Abrams’ organization Fair Fight Action, charging that the state’s electoral system disproportionately disadvantages voters of color, the DeKalb County Board of Elections formed a bipartisan working group that brought in Ms. McReynolds to help improve their election administration. After years of laboring in an office with leaky ceilings and low morale, they secured the support of the county’s Board of Commissioners to increase their budget for needed improvements, including hiring additional staff, and elevating the woman in charge of absentee ballots to a managerial post and supporting her with a new certified project manager.
Despite Republican pushback elsewhere to expanding mail-in voting, that hasn’t been an issue in DeKalb, whose Board of Registration and Elections has two members from each party, plus a nonpartisan member.
“When we sit down as a board, I and the other members try to take off our Democratic and Republican hats and look at what’s good for the citizens of the county,” says Baoky Vu, the Republican vice chair of the board whose family fled South Vietnam after the U.S. pulled out, opening the way for the communist North Vietnamese to take control of the country. “We’ve become so polarized that it is a critical moment in time, because I’ve seen the extreme in other countries where you don’t have democracies – it’s either you win and you rule 100% or you lose and you get nothing.”
“Everyone feels the pressure”
That polarization was exploited and exacerbated in 2016 by a Russian campaign to interfere in the U.S. election, seeking to sow discord and distrust, and weaponizing the country’s own citizens to weaken it from within.
To help bolster public trust in the electoral process, the National Association of Secretaries of States, which proudly proclaims itself to be the oldest nonpartisan professional organization of public officials in the country, launched a campaign last year under then-president Paul Pate of Iowa called #TrustedInfo2020. The goal is to encourage citizens to flag any suspected misinformation about the election or voting on social media and seek verification from their election officials directly.
“That’s a campaign we’ve started and under my administration we’re going to continue and ramp up,” says the new president, New Mexico Secretary of State Maggie Toulouse Oliver, in an interview.
“We have to demonstrate nonpartisanship, fairness, and integrity to ensure that every voter in our state believes and trusts that there will be a fair election,” she adds. “The reality of political polarization and toxic rhetoric out there that has really invaded the election space is clearly harmful and detrimental to the voting process, and we are all combating that individually and collectively.”
Back in Georgia’s DeKalb County, Board of Elections member Ms. Smith says she is cautiously optimistic about the November election.
“And I say that because we have a great deal of eyes on us – I’m a huge fan of accountability,” says Ms. Smith, a former local government executive who previously worked in Georgia’s Fulton County and Florida’s Broward County, two other locales whose elections have been scrutinized. “That is making everyone feel the pressure to really step up.”