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What prevents a state from going rogue on the Electoral College?
The National Task Force on Electoral Crises has been doing yeoman's work all year to shed light on threats to democracy and debunking rumors. Today, the bipartisan group released a carefully researched and well-documented takedown of the idea that state legislatures may send rogue slates of electors to vote their own way in the Electoral College.
The briefing, "A State Legislature Cannot Appoint Its Preferred Slate of Electors to Override the Will of the People After the Election," outlines the laws that govern how states choose electors and how those electors must vote. For more than 100 years, every one of the 50 states has chosen electors based on the winner of the popular vote.
While the U.S. Constitution permits state legislatures to choose electors for other reasons, states must do so under laws enacted before Election Day, the task force said. There's also a federal law, the Electoral Count Act, that would block Congress from accepting electoral votes that don't mirror the state's popular vote.
The Supreme Court also ruled this year on the question of "faithless" electors, like the one in 2016 who voted for Bernie Sanders rather than Hillary Clinton. The court settled that issue, said Adav Noti, senior director for trial litigation at the Campaign Legal Center. A duly chosen elector must vote for the candidate who wins the popular vote, Noti said.
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"If they don't do that, they're automatically replaced by someone else," Noti said. "There's no room for deviation."
The one grey area is if there's an "election failure." This would be if a vote is so close that even after counting and recounting there is no certainty about who won. That's never happened in a presidential election before, but it is what the president is suggesting — without evidence — will happen this year.
"Absent a true election failure — something the country has not experienced in modern history — federal law requires states to appoint electors," the task force says. "A state legislature's attempt to override the will of voters would also violate fundamental democratic norms, jeopardize the state's entitlement to ensure that Congress defers to its chosen slate of electors, and raise significant constitutional concerns."
Over at The Washington Post, Election Dissection contributor Edward B. Foley expressed less confidence that one of the swing-state legislatures controlled by Republicans may not at least try to go rogue this year. He spelled out how GOP lawmakers, spurred on by the president and his supporters, could invoke their power to select their own Electoral College slates. They would argue that voters "failed to make a choice," even after state election officials finish their counts, recounts, audits and certifications of the vote. Foley goes through, step by step, how governors and legislatures may clash if this were to happen, and how it might play out in Congress.
"Chaos would ensue," Foley wrote. "No patriotic American should wish this kind of disruptive nightmare on the country. Republican leaders — in particular, Republican senators — must puncture this trial balloon, quickly and decisively, and let the people, not state legislatures, decide who will be their next president."
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What's next for U.S. democracy after the president's stress test?
In another assessment of the 2020 vote so far, Election Dissection sat down with Laura Williamson, who works on voting rights and democracy at Demos. We spoke about President Trump's election night remarks as a stress test for the United States. Williamson had plenty to say about the state of the elections and some things that need fixing after the votes are finally counted.
What was your reaction to the president?
The president's remarks and actions are a test of our ability to show up, as a people, to mass mobilize and resist his authoritarian calls to end the counting. The basis of our democracy is that we pick our leaders. It's not the president or the courts that choose. So it's a test of our ability as a people to resist what is so clearly an anti-democratic attack.
And Americans are rising to the test. We're seeing masses of people calling for every vote to be counted. They're showing up and exercising their political power. We flexed our political power one way, by voting before or on Election Day. Now we're exercising it again in a different way — showing up in the streets and demanding every eligible vote is counted.
What did the election say about American democracy?
American democracy wasn't functioning well for many Americans before this election. Sure, it's working well as it was designed by our all-white, all-male founding fathers — to protect white political power — but it's still failing Black and brown people. For example, we have the legal principle of one person, one vote. In practice, however, not every eligible person has the opportunity to cast their ballot or have it counted, and those disenfranchised are disproportionately Black and brown Americans. 2020 made that clearer than ever, but it's not new.
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The question is, after we survive this particular assault, whether we're going to change the institutions and systems that make our democracy unhealthy. It may be tempting to think if we survive Trump's call to stop the count that our democracy passed the stress test and everything is OK. I would challenge that idea and encourage us to prioritize structural reform that will help us build an inclusive democracy for the first time.
What are your highest priorities after the election?
One of the biggest projects at Demos is a constitutional amendment guaranteeing the right to vote for all eligible people. If we had a guaranteed right to vote, a lot of the voter suppression efforts we saw this year would have been moot. A right-to-vote amendment would state the right in an affirmative way. Ideally, it would also undo all of the attempts we've seen over the centuries to make the right to vote not a real right for a lot of people, particularly Black and brown people. It would have prevented a lot of the problems we saw this year, like states not accepting Covid-19 as an excuse for absentee ballots, or the Supreme Court prohibiting curbside voting in Alabama.
Any other observations about Election Day?
The turnout was impressive. Voters went to the polls at the highest rate in more than 120 years. But we should also not lose sight of the counterfactual, the things we can't quite quantify. Like all the people who were not able to overcome the tremendous barriers to the vote this year. Or those who didn't turn out because of the very credible threat of violence.
I talked to one registered voter, a Black woman in Graham, N.C., who generally votes. She decided not to vote after what happened on the Saturday before the vote. Police there pepper-sprayed a group of voters marching to the polls for early voting. This woman said she couldn't risk facing something like that. We may not have had open violence in the streets, as we feared, but we still absolutely had voter suppression.
Yet, despite all the threats, Black and Latinx folks turned out, especially in the states we're watching right now. I think Black and Latinx voters flexing political power to reject the assaults on their communities is the biggest story of the 2020 election. And it's the result of deep, sustained investment by local groups who have been organizing for years, day in and day out. Groups like LUCHA (Living United for Change in Arizona), BLOC (Black Leaders Organizing Communities) in Wisconsin and the New Georgia Project. These are the groups who have been knocking on doors, talking to people about education, health care, workers rights and immigration — everything that affects people's lives. That's how we build a democracy that reflects all of our voices and works for all Americans.
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What worked: strategies to mitigate foreign election interference
Election Dissection spoke with David Levine, elections integrity fellow at the Alliance for Securing Democracy. Levine has been tracking foreign attempts to interfere with U.S. voting this year, but he also knows a lot about the mechanics of running elections in the U.S. He's managed elections in Boise, Idaho, Richmond, Virginia and Washington, DC.
What can we say about foreign interference in the 2020 election, so far?
There aren't any indications foreign adversaries were able to interfere with the election infrastructure to affect vote tallies, change results or alter any voter data. In one instance, Iran was able to take non-public voter data, but there's no evidence the data was altered. The interference hasn't affected the outcome, and that's really important.
The FBI and others openly acknowledge it's a challenging time after the election. There's still an opportunity during the post-election process for our adversaries to exploit ambiguities, to push disinformation campaigns or to amplify false information coming from domestic sources.
We know that Russian sources were pushing a voter-fraud conspiracy in Pennsylvania recently. Earlier this week, RT [a state-controlled Russian news service] was trying to suggest there was a great deal of fraud. Their video was flagged and taken down. The bottom line is that there isn't any evidence that the voting infrastructure has been altered, or that vote tallies were affected in any way.
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What worked well this year?
We saw more paper backups in 2020. Every piece of election technology is capable of breaking down. When there's a backup, you can continue voting. You can assure the election process continues unabated.
Another good development was all the planning for potential attacks. Election officials are resourceful on their own, but they had more federal help in 2020. We saw the Department of Homeland Security do training on cybersecurity and things election officials can do. Local officials were given tools they needed. There was outreach, training and support.
Also, in 2020, the government wasn't just trying to be aware of problems like foreign interference. They were attacking it, trying to actively disrupt our adversaries. That yielded some intelligence that federal officials were able to feed back to localities.
What were your big takeaways about this year's election?
We had high interest among Americans wanting to vote. That's good. This demonstrates Americans have confidence in our voting process. Had they not had confidence, they would have stayed home.
One of the really good things this year is that people began to see an election as a season and not a single day. Number one, during a pandemic, voting is safer if you spread it out. Fewer people at the polls at any one time means you're less likely to contract the virus there.
Number two, it's good for election security. For example, spoofed emails were identified by the intelligence community. Over a 24-hour period, state and local officials were briefed and got the information out to voters. There was a way to mitigate the damage. Having a longer election period means if there's an incident, it's less likely to impact voters. When you have voters spread out, it means election officials have more opportunities to deal with any issues that do arise. It also means individual voters are less likely to wait in long lines.
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