The Weekly Sift

Once the election board picks a side, does it matter what the voters want?

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The usual methods of stealing elections go back to Athens and Rome: Bring in unqualified voters of your own, or use force or trickery to prevent your opposition’s voters from showing up in the right place. If voters vote by dropping tokens in a box, miscount the tokens, or maybe lose boxes from precincts where you don’t expect to do well. There’s a long history of such tried-and-true methods being used in the United States, and voting systems are designed to avoid such shenanigans.

For the most part they’ve been designed pretty well, and by now actual election-day cheating is fairly rare (despite Donald Trump’s baseless claims about every election he’s ever lost, going back to the Iowa caucuses in 2016 and even the Emmys “The Apprentice” lost). That’s why most current cheating goes on before election day, by “purging” the voting roles of legitimate voters, or requiring IDs that your voters are more likely to have than your opposition’s voters.

2020. But in 2020, Trump came up with a novel scheme to cheat after all the votes had been cast and counted: At every level from county election boards to the counting of electoral votes in Congress on January 6, Trump did his best to delay certification of Biden’s victory. The goal of this delay was not just to declare himself the winner (as he hoped Mike Pence would do by counting the votes of his fake electors), but to delegitimize his loss by pushing certification past certain legal deadlines.

If January 6 had come and gone with no recognized winner, he might have been able to push the decision into the House, where each state has only one vote and Republican delegations outnumbered Democratic delegations. Or possibly the succession might have been decided in the Supreme Court, where the 6-3 Republican majority has shown its willingness to decide cases on a partisan basis. If January 20 had arrived and no new president could be inaugurated, then he might simply have stayed in power temporarily until … well, until never. If voters had taken to the streets to protest their disenfranchisement, right-wing militias could make sure that demonstrations turned into riots that required federal troops and temporary martial law.

At each stage, Trump would hold out the promise of a peaceful transfer of power … but not yet. Here’s what Ted Cruz was proposing on January 6:

And what I would urge of this body is that we do the same [as in the contested Hayes/Tilden election of 1876]. That we [appoint an] electoral commission to conduct a 10-day emergency audit, consider the evidence, and resolve the claims [of fraud]. For those on the Democratic aisle who says, say there is no evidence, they’ve been rejected, then you should rest [in] comfort if that’s the case.

From today’s perspective, when Trump is still making claims of fraud despite uncovering no evidence in nearly four years, it seems naive to imagine that any ten-day audit could have resolved the doubts Trump had falsely instilled in his followers. If the electoral commission didn’t decide in Trump’s favor, then it too would have been “rigged” and “fake”. So then it’s January 16, with four days to inauguration, and there’s still no president-elect. What then?

2024. Four years later, Trump has had time to refine this plan. In many ways, he’s in worse shape to pull it off: He isn’t president. So if Harris wins, but her victory can’t be certified by January 20, it’s Biden who might stay in power. (Biden might then resign and let Harris become president until her victory could be certified.) And as President of the Senate, it’s Kamala Harris who will preside over the joint session of Congress on January 6.

Also, one state where the election is likely to be close (Arizona) now has a Democratic governor, but another (Nevada) has flipped in the other direction.

But he has one advantage now that he didn’t have in 2020: Despite the lack of evidence, the myth of the 2020 stolen election has become dogma among Republicans, who have worked to make local election posts more partisan. Republican officials like Aaron van Langevelde, who voted to certify Biden’s victory in Michigan because that was his legal duty, have been replaced by people more loyal to Trump than to the law.

Across the country, county-level boards of canvassers have what is legally known as ministerial duties. They aren’t supposed to be investigators and they aren’t supposed to make judgment calls. The law assigns them the mundane job of receiving vote totals from the precincts, adding them up, and passing the information up to state officials by some set deadline. Recounts and challenges to the votes-as-first-counted are somebody else’s job.

But Republicans see county election boards as places to stand while they throw monkey wrenches into the system. If counties don’t certify totals and pass them up the line, then states also can’t certify elections. This has been tried out in various state and local elections since 2020, usually unsuccessfully. (Often the refusal to certify comes from rural Republican counties who are protesting election fraud that they imagine happens in urban Democratic counties.)

A few weeks ago, Citizens for Responsibility and Ethics in Washington (CREW) published a report Election Certification Under Threat. The report identifies 35 officials in eight states who have already refused to certify an election. Nearly all of them are either still in office or likely to be reappointed at any moment. The report lists, state by state, the actions that can be taken to overcome the threat.

Those steps usually begin with a mandamus lawsuit. Mandamus is Latin for “we command”, and is related to the English word mandate. In a mandamus case, a court has the power to force an official to do his or her job. If the official refuses, the court has options that vary by state. The court may appoint a new official, or fine or even jail the resisting official.

What gives a court this kind of power is the ministerial nature of the job. Typical state law says that election supervisors shall (not should or even may) certify an election within a certain time period. If they don’t, they’re violating the law. Even if the officials are correct in thinking that vote totals are tainted, dealing with that is somebody else’s job. They’re just supposed to collect numbers from the precincts, total them up, and pass the results on.

Mandamus suits should work just about everywhere. Local officials can call attention to their cause by initially refusing the certify an election, but ultimately they’ll have to.

Georgia. But “just about anywhere” may not include Georgia, which Biden carried by less than 12,000 votes in 2020, and where Harris/Trump polls are very close.

In a series of meetings in July and August, the Georgia State Election Board voted 3-2 to change the rules governing local election boards. (The three members voting to change the rules all deny that Joe Biden won Georgia in 2020, despite the complete lack of evidence for that view. Trump has given them a shout-out at a political rally. When was the last time a national candidate paid any attention to a state election board?) Lawrence Tribe and Dennis Aftergut summarize the new rules and their apparent purpose:

The first rule requires local election officials to conduct “reasonable inquiry” into election results before certifying them. The term “reasonable inquiry” is dangerously elastic, creating an opening for authoritarians to do whatever they want. No sensible court would ever approve such a system, by which unelected appointees could issue open-ended election rules making certification discretionary, especially without any such directive from the legislature of Georgia to end democracy.

The second rule permits individual county board members “to examine all election related documentation created during the conduct of elections prior to certification of results”. The opportunities are unlimited to delay certification by demanding that documents great and small be produced before certification.

One apparent goal is to bypass federal and state law requiring states’ votes certified in time for Congress, on 6 January 2025, to bless the election results. If enough states’ certifications are stalled so that too few electors are actually appointed as of 6 January, under the 12th amendment, the presidential election goes to the House. There, per the constitution, the election is determined by one vote per state delegation. Given gerrymandering and how the House is structured, Republicans have held a majority of the state delegations for years. In November, by their votes, Trump would become president, regardless of whether he has won the electoral college vote or a popular vote majority.

Who are those guys? One unintended benefit of Trump’s relentless assault on democratic processes is that we all get a rolling civics lesson. Here’s some stuff I never knew before about the Georgia State Elections Board:

The board has five members: one appointed by the state House, one chosen by the state Senate, one each from the Republican and Democratic parties, and a nonpartisan chair selected by the General Assembly or by the governor if the General Assembly is not in session when there is a vacancy.

The three Trumpists trying to monkey-wrench Georgia elections are the House, Senate, and Republican Party appointees. The Democratic appointee and the chair appointed by Republican Governor Kemp voted against the new rules.

You may notice from that description that none are elected by the People of Georgia, and so they really shouldn’t (and almost certainly don’t) have the power to circumvent laws passed by the legislature. If state law says that the local election officials have until 5 p.m. the next Monday to certify Tuesday’s election (as it does say), the GSEB can’t authorize further delay.

Remedies. With that in mind, some Georgia voters and the Georgia Democratic Party are suing the GSEB in state court

To remedy these harms and prevent chaos in November, this Court should follow decades of binding precedent and declare both that the statutes mean exactly what they say and that SEB’s rules must be construed consistent with those statutes in order to be a valid exercise of SEB’s authority. …

Such relief is needed now, before the November 5 election and the start of the six-day clock the election code sets for certification. Election officials are already setting procedures and staffing for canvassing. Similarly, candidates and political organizations are already allocating resources and making efforts to ensure that every vote is counted. Withholding relief until a county board or other superintendent relies on the rules to delay certification or not certify at all risks disorder, including extremely rushed emergency judicial proceedings across multiple courts; imposes additional burdens on Georgia’s courts, election officials, and political organizations; and could lead to the discarding of valid votes cast by qualified electors

Democrats may have some allies in this effort: Georgia’s Republican Secretary of State Brad Raffensperger and Governor Brian Kemp. Both have denounced the new rules, and Kemp reportedly has asked the state attorney general to determine whether he can remove the GSEB’s three Trumpist members.

At a rally in Atlanta on August 5, Trump denounced Governor Kemp, who has consistently denied Trump’s claim that the 2020 Georgia election was rigged against him. But they have since patched up their differences and Kemp is supporting Trump. If Kemp removes board members Trump picked out for praise, though, the feud may start up again.

Harris’ best strategy: Win big, win everywhere. Of course, this disruption will only occur if Trump loses Georgia, and is only one of the tricks he can be expected to play in any state where the election is close. The best way to avoid another tense November, December, and early January is if Harris wins by margins large enough to dwarf Trump’s complaints, and to win in enough states that no single one is necessary for an Electoral College majority.

The most direct path for Harris to get 270 electoral votes (exactly) is to win Wisconsin, Michigan, and Pennsylvania, along with the 2nd congressional district in Nebraska. (Nebraska and Maine give separate electoral votes to each of their districts. Nebraska’s lone Democratic electoral vote should cancel the lone Republican vote from Maine.) Also in play are Georgia, Arizona, Nevada, and North Carolina. Winning two or three of those would protect the election from a lot of shenanigans.