The last few months have taught us all how difficult it might be to forecast what will happen between now and Election Day. However, we know there are potential threats to our democracy gathering like storm clouds on the horizon. This awareness allows the pro-democracy movement to prepare for “bad weather.” When the forecast calls for rain, you bring an umbrella.
Delayed Certification of Election Results
One looming issue Campaign Legal Center (CLC) has been working on for the last two years is making headlines now: The possibility that state or county election officials could try to delay the official certification of election results. CLC has spent enormous time and effort ensuring that state deadlines for recounts and contesting election results comply with the Electoral Count Reform Act (ECRA), passed by Congress in December 2022. Today, many states have deadlines in place that comply with the ECRA.
But now the actions of a 3-2 Republican majority on the Georgia State Election Board have raised concerns about the possibility of delaying or disrupting the certification of that state’s electoral votes. New rules pushed by partisan actors raise the possibility of unnecessary and time-consuming reviews of vote totals, which could create more uncertainty and chaos in an already contentious election cycle.
Fortunately, there’s a silver lining to this otherwise dark cloud. Federal and Georgia state law already set firm legal deadlines for certifying final election results. And, as Georgia Secretary of State Brad Raffensperger noted, election officials are still legally obligated to complete their post-election processes by that deadline. If county election officials in Georgia (or other states) defy their legal duty to certify election results, those actions would almost certainly be immediately challenged in court.
In the most recent elections, we have seen state courts move quickly to address county refusals to certify. In addition, the ECRA provides an avenue for speedy federal court action to resolve disputes concerning states’ certification of electors. CLC was deeply involved in drafting the ECRA and now assists states with implementation.
Election Disinformation and Misinformation
Post-election challenges are more likely, in part, because of another threat: disinformation and misinformation amplified by a polarized news and information environment. Combating this corrosive force in our politics is very difficult. Its polluting influence can be seen in widespread threats of violence against election officials as well as the efforts to interfere with the counting of ballots and potentially challenge the certification of election results.
I worry about disinformation in the event of a close presidential election. In that scenario, legally cast mail-in ballots counted after Election Day could prove decisive, as they were in 2020. This is a predictable and normal delay in the final vote tally.
Some states, such as Florida, begin processing mail ballots ahead of Election Day so that they can report total results on election night or shortly after. Others, such as Wisconsin and Pennsylvania, begin opening mail ballots on Election Day, resulting in substantial changes in vote totals the following days as mail ballot results are added to statewide totals. In 2020, this led to false claims of “election rigging” as the vote totals shifted from Trump to Biden. Sadly, we have seen no slowdown in rhetoric that has led millions to distrust the electoral process.
Restrictions on the Freedom to Vote
No election forecast is complete without considering the cumulative effect of restrictions on Americans’ freedom to vote enacted since the 2020 election. Dozens of laws are now on the books making voting by mail and in-person voting more difficult and increasing the risk of wrongly removing legally registered voters from the rolls. CLC’s activity in this area includes representing Latino and Native voters in an ongoing court fight over laws in the swing state of Arizona that violate federal law.
Then there’s the continuing injustice of millions of Americans losing their freedom to vote this November because of a past felony conviction. Some states, like Minnesota, have made progress on this issue. Others, like Alabama, have been moving in the wrong direction, forcing voters to fight for their rights in court. CLC successfully represented a group of voters opposing a new Alabama law expanding the state’s felony disenfranchisement regime that was set to take effect just one month before the November election. A recent court order makes it very clear that currently eligible Alabamians will be able to vote in the 2024 election without extra confusion or fear.
Special Interest Election Spending
Finally, the forecast calls for a torrential downpour of special interest money spent on ads and other activities to support both major party candidates. Our elections have seen an escalating cycle of outside spending ever since the Supreme Court’s Citizens United v. FEC ruling. This spending, much of which comes through anonymous sources, drowns out the voices of everyday Americans.
To make matters worse, the agency tasked with overseeing federal elections recently issued an outrageous ruling that has opened our elections to new forms of coordination between campaigns and dark money groups. The Federal Election Commission (FEC) ruling permits coordination on get-out-the-vote efforts, essentially allowing the outsourcing of what used to be a core campaign function. This is the FEC throwing in the towel at precisely the moment when we need strong enforcement of federal campaign finance laws.
Responding to Democracy Threats
Thankfully, the pro-democracy movement has mobilized as never before to respond to these looming storm clouds, acting with urgency to protect the democratic process through advocacy and action in our courts.
Campaign Legal Center’s goal is to help the American people weather whatever storms come our way. Now through Inauguration Day, I plan to provide regular election updates and expert analysis in this newsletter. Our country certainly has faced and overcome dire political forecasts in the past, and we must step up once more to ensure all voters can meaningfully participate in our democracy.
The nonpartisan Campaign Legal Center is dedicated to advancing democracy through law at the federal, state and local levels, fighting for every American’s rights to responsive government and a fair opportunity to participate in and affect the democratic process.
