How can the U.S. election be disrupted?
An interview with electoral law professor Samuel Issacharoff
For my first newsletter, I thought it would be helpful to spell out the pitfalls of how Trump could disrupt the November election. A key element of this relies on what electoral law scholar Richard Pildes describes in the U.S. as a lack of “independent institutions to oversee the election process, such as specialized electoral courts, independent boundary-drawing commissions, and independent agencies—institutions common in most democratic countries.” Pildes says that this results in “partisan, elected, and mostly local officials in control of much of the regulation and administration of the electoral process.”
The coronavirus context has shifted the original platform that Trump and his team thought would guarantee him a November win. He can no longer run on the economy because his calamitous response to the pandemic has killed economic growth, and probably for a long time. His political position is weakened going into the general and a November loss looks like more and more of a real possibility. This means he has had to change course and opt for a re-election strategy that relies on white supremacy but accords an even greater place for misinformation, in an effort to undermine the election results and its overall credibility.
Trump’s narrative of electoral fraud began after his election in 2016, when he claimed that Hillary Clinton won the popular vote because of voter fraud. Throughout his time in office he has attacked fundamental democratic institutions, but during the impeachment process he began more openly stating his intentions to stay in power no matter what. In his official letter to Nancy Pelosi at the start of the trial, he used the terms "attempted coup" and "open war."
On February 5, just a few minutes after his acquittal by the Senate, he tweeted that he would be elected for life, while Mike Huckabee said he was preparing the campaign for a potential third term. Journals like Politico classified the tweet as “a parody video joking that he would be president forever,” despite no evidence that he was joking. On April 3, a few weeks into the pandemic, with poll numbers dropping, he began his campaign against mail-in voting, saying the Democrats "intend to cheat."
The current cohort of people in the White House are white supremacist maniacs. They have proven themselves to be cowards on numerous occasions, but they are also pushing an openly white supremacist agenda as far as they can take it. Trump has shown throughout his career that he does not care about the law or norms, and that if maintaining power is his main goal, he is willing to do whatever it takes. Many white supremacists view the November election as their last chance to grip onto power, and would rather push the country toward civil war rather than relinquish any of their whiteness.
When confronted with protests demanding Black people be treated as humans, Trump mobilized the National Guard and demanded that combat troops be deployed to major cities. Faced with the possibility of disputed election results in November, it seems likely he would call on the military to step in for him.
Yet if the protests were a dry run for popular resistance a stolen election in November, there was one clearly positive sign: the military, which is 40 percent people of color, balked at the idea of deploying to the streets. Trump was forced to call on the most fascist of America’s armed forces to him: ICE, CBP and the Federal Bureau of Prisons, meaning that he would likely face armed forces divided and not fully committed to protecting him should he decide to cling to power in November.
But before getting to that scenario, I wanted to outline a presidential attack on the election would play out legally. With that in mind, I interviewed Dr. Samuel Issacharoff, a professor of constitutional law who specializes in electoral law at NYU:
JP: Do mail-in ballots favor one party over another?
SI: It doesn’t seem to. Historically, absentee ballots were thought to track Republican, but that was in part because absentee ballots were used by older owners, and by military voters, and both groups tended to be tend to tilt Republican. But now that it's more widespread. I don't think we have any evidence favors one party or another.
JP: Can you speak about the alarming rhetoric about the Democrats cheating and the repeated attempts to discredit mail-in voting. What work does that do?
SI: Continuing with the theme that the Republicans believe that turnout is itself the enemy of their electoral prospects, they have fastened on any aspect of the voting process that is perceived to enhance the ability of voters to vote. It’s really quite that simple.
This is then compounded by the irresponsibility presidential rhetoric about massive numbers of fraudulent votes. This began in earnest with the 2016 election where President Trump blamed fraudulent votes for the 3 million votes gap between himself and Hillary Clinton in the popular vote.
That rhetoric has basically gone on undiminished and has intensified. It is noteworthy that there was no sustained attack on absentee voting fraud by the Republican party until the COVID pandemic. So, it was an attempt to disable the states’ response to the crisis of voters not being able to get to the polls.
JP: If there are now millions mail-in votes instead of a couple hundred thousand, will the vote counting process will take longer?
SI: No question it will take longer.
JP: How will that affect the outcome? Maybe we won't have a declared winner on election night, for example?
SI: That's extremely likely. It has always taken a long time to count votes are delivered by mail, and you know absentee votes can be cast in multiple ways. They can be cast early at early voting centers where they can be collected well before election day. In fact, the majority of absentee voters to vote that way.
But for those that are mailed in, it just takes time, just like it takes time to count balance from overseas military. In most instances it doesn’t affect the outcome of an election because the number of absentee votes is too small relative to the likely margins in the major races like the presidential race. But with greater numbers of absentee votes, it will take a while. Wisconsin did an extraordinary job in the last election, and they managed to get all the votes cast and counted three or four days.
JP: It seems like a lot of states have different specific rules about mail-in ballots. Who validates the ballots?
SI: Election officials under state law, all of our elections are handled as local events.
JP: And those are elected officials?
SI: Not necessarily. In some jurisdictions they are, in some they are not. Most frequently it is under the control of the Secretary of State, who is an elected official, but is not always an elected official.
JP: Would a disputed ballot go to circuit court or straight to state Supreme Court?
SI: That depends on the local jurisdiction. Usually a disputed ballot goes to the local board of elections with a right of appeal to the court of first instance, or whatever the local court is. I'm not aware of any state that allows direct appeal to the state Supreme Court.
JP: Do you think that you'll see more disputed ballots this election than previous elections?
SI: The challenges to individual ballots tend to not tend to be a sideshow and not very important. Most American elections are decided by sufficient margins that nobody engages challenges or attempts to redo the election process on a retail basis. People are always looking for wholesale ways to gain advantage or even cheat. That's why you know the Republican challenge is not that John Doe doesn't have a right to vote but that nobody should be able to vote absentee.
JP: OK. But you foresee a circumstance for example where, you know, 50,000 mail-in ballots get cancelled in a state like Michigan, for example?
SI: There would have to be some legal basis for that and there would be legal process over that. There are a few cases in the history of the United States where there was massive uncertainty about absentee ballots. A mayoral election in the 1990s in Miami is the best example. But that's not really what the concern is on election day.
JP: I just want to speak briefly about Jared Kushner floating the possibility of postponing the election, and just wanted to get your thoughts on legally, how that would be possible. And if it's not possible, why would he say that?
SI: Elections are conducted at the local level. There is very little federal authority over the actual election process. And to the extent that there is federal authority, I am not aware of any position of governmental authority held by Jared Kushner.
But leaving aside his preposterous statement that he is not we are committed to a November election, the elections are run at the state level. The federal government can create obstructions: it could declare states of emergency could try to impose lockdown down under a fear of the virus returning, or something of that sort. But it has no direct authority over the conduct of the elections, that's a matter of state responsibility.
Now, if Trump raised the specter of massive fraud or national emergency or threat, could some Republican state officials try to cancel the elections in their jurisdiction? There are ways in which they can engage in certain types of destructive conduct, but they are under a federal mandate to hold the election the first Tuesday of November. They can't not do so, they can only alter how they how they conduct the election. So, this is empty bombast, it is destructive of a democratic society. It is corrosive. But there is no federal authority to decide how and when the elections will be conducted.
JP: OK. But just, just to probe that. Say, for example, there coronavirus spikes in the fall and it impacts how people are getting to the voting booths. And say the Trump declares a federal state of emergency. What are the mechanisms a Republican secretary of state or governor could use in that case?
SI: Well the federal state of emergency just triggers some of the federal powers such as FEMA and things of that sort. It wouldn't affect the voting. A state could declare some power of emergency and try to postpone the election or alternate or its form.
Governor Mike DeWine did that in Ohio, and the election was postponed. In Wisconsin, the governor attempted to do that and it was reversed by the state Supreme Court. These are matters of state law, and some states give the government more power, some give it less. Some rest this power in the state legislature, some do not. But the idea that there’s a coordinated command and that we have elections in the country by grace of the President's blessing is preposterous.
This interview has been edited for clarity and length.
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Other news:
- On June 4, I put signs reading “White Supremacist” and “Slave Owner” on statues of George Washington at Federal Hall on Wall St. and at Union Square, and was arrested for doing so. I did this because I thought that it was a more effective way of communicating information than writing articles and taking photographs. The video is here.
- On May 17, Sam Diaz won American Idol. Sam is an exceptionally talented singer that Ladan and I profiled in our documentary short for Topic, “Sam, Underground.” If you want to re-watch it, you can do that here.
- We are finishing “The Ascendants,” an episodic documentary series directed by Ladan that profiles four incredibly talented young Black women musicians from Chicago. It is an amazing series and we are very excited to share news about it soon.
- “Sun of the Soil: The Story of Mansa Musa” is the short film we’ve been working on for years. We have some good news to share about its release but it’s been caught up in coronavirus and we are waiting to hear back about the next steps. In the meantime, you can watch the trailer here.
- Here is some of my coronavirus coverage over the past couple of months:
The Intercept: Racism Drove Timing of U.S. Coronavirus Travel Bans
The Intercept: U.S. Got More Cases of Covid-19 From Europe Than China
The Intercept: Coronavirus started in China, but Europe became a hub for its global spread
Business Insider: Chaos reigns at ICE detention centers amid fear that coronavirus is 'spreading like wildfire'
I would like to honor the lives of the Black people who have been killed in the U.S. in recent weeks. The violence is overwhelming: RIP Oluwatoyin Salau, Riah Milton, Dominique Fells, Rayshard Brooks, Robert Fuller, Malcolm Harsch, Russell Forrest, Breonna Taylor, Tony McDade, George Floyd, and so many others who have been taken from this world to protect whiteness and misogyny. This must stop.
I also wanted to acknowledge the 434,000 people who have died from coronavirus around the world. We need a period of global mourning for these deaths, and it doesn’t appear to be forthcoming. We are truly living in some of the hardest times in my generation and I feel we need to take a moment and recognize this great loss of life. I am hoping that these moments will be catalysts for justice.